Issues

Many scholars expected the Supreme Court’s Counterman decision to significantly reshape true threat law, undermining public safety while expanding protections for caustic political speech. Counterman required that a speaker consciously disregard a substantial risk that their communications would be viewed as threatening violence to give rise to liability. This created a concern that it would be difficult to convict harassers and stalkers who were, or claimed to be, delusional, and thus unaware of their speech’s likely impact. Scholars also feared the invalidation of some stalking and harassment statutes and increased difficulty in obtaining protective orders, which play a major role in preventing intimate partner and workplace violence.

This first empirical study on Counterman’s effects finds that, while these concerns have largely not materialized, considerable uncertainty remains. In federal courts, Counterman has had a minimal impact on jury instructions, has not resulted in any convictions being overturned, and has even been cited to justify admitting probative but damaging evidence of defendant intent. In sum, it has not benefited federal defendants. At the state level, by contrast, some courts have vacated convictions due to constitutionally deficient jury instructions, and a minority of states have applied Counterman’s recklessness standard to civil cases, potentially signaling a shift in how those jurisdictions will address protective orders. No state stalking or harassment statutes have been invalidated, however, and the majority rule is to not apply Counterman to protective orders.

But this status quo rests precariously on state courts deciding to minimize the sweep of Counterman. Many courts assume that Counterman does not apply to civil cases and that a large class of stalking and harassment laws exist independently of true threats doctrine. These conclusions are debatable and jurisdictional splits on them are already emerging. If the Supreme Court revisits these issues, the fears of Counterman’s critics may yet be realized.

Originalists have taken over the Supreme Court, and many commentators are up in arms. This historical approach to constitutional interpretation can entrench historical biases, result in what many view as unjust decisions, and even cloak politically motivated opinions. But entirely rejecting a historical approach to constitutional interpretation overlooks what can be an upside of originalism: Because of our country’s unique history of being founded by British rebels, some practices from the time of the Founding—such as recognizing a strong jury right—advantage criminal defendants. Thus, employing a historical approach such as originalism in assessing the scope of constitutional protections can actually achieve—at least where criminal defendants are concerned—what are often today considered progressive outcomes. The timely issue of jury size is a good example of this. While a historical approach would focus on our long history of twelve-member juries, the Court’s more recent evolving functional approach has allowed smaller juries. Considering that criminal defendants generally benefit from larger juries because they can achieve more accurate outcomes, better represent their communities, and, importantly, allow more chances for hung juries, jury size offers an important lesson about the possible benefits of employing originalism in areas of criminal law and procedure.

System Justification Theory (SJT) provides a useful lens through which to critique recent police reform efforts. SJT posits that members of society tend to justify and maintain existing social and political systems even when those systems disadvantage them, because the predictability of the status quo provides palliative, epistemic, and existential comfort in what otherwise appears to be an unjust and inequitable societal structure. Contrary to “false consciousness” theories, SJT claims that disadvantaged groups may intentionally rationalize what they know to be an unfair status quo, because doing so reduces social anxiety and threat while providing much desired order and meaning to structurally or systemically broken systems.

One such broken system—the American policing machine—continues to enjoy broad system justifying support from advantaged and disadvantaged groups alike, despite incontrovertible evidence of the system’s unfairness, ineffectiveness, and inefficiency. This contention may seem at odds with the fact that policing also receives among the most vocal and sustained criticism and calls for change of any stable political structure in the country. But it is those very “reforms” championed and implemented in recent years that proves the inherent desire to defend and maintain the status quo.

This Article provides two novel contributions to legal literature. First, it provides the first SJT-specific critique of policing and its ability to maintain itself, relatively unchanged, despite its long history of racialized violence and class exploitation. Second, it utilizes the SJT framework to explore how purported reforms to the policing status quo are designed to defend that status quo as fundamentally sound and fair. The two most heavily funded and implemented policing reforms since the Summer 2020 uprisings against police violence—procedural justice and predictive policing—serve not to transform the structure of policing by eliminating it or reducing its bias and exploitation, but to justify its inherent authority through the façade of objectivity. These reforms provide a veneer of legitimacy, making it easier to rationalize the unchanged and unjust status quo. At root, SJT reveals that defenses of policing rarely derive from logic or facts, but from deep-seated psychological needs to perceive the world as orderly, safe, and fair. Recognizing these motivations is key to fostering productive dialogue about true transformative change.