Link to Helen L. Norton, University of Colorado Law School, has published Fear and Free Speech at 98 Southern California Law Review 1351 (2025). Here is the abstract. Helen L. Norton, University of Colorado Law School, has published Fear and Free Speech at 98 Southern California Law Review 1351 (2025). Here is the abstract.
Speakers who fear the prospect of the government’s punishment often express themselves less—or express themselves differently—than they would if they were not fearful. This, in turn, harms the speaker’s and the public’s First Amendment interests by stifling the delivery of opinions, facts, and ideas.
At the same time, targets fearful for their physical safety at the hands of a speaker often speak less, and speak differently, than they would if they were not fearful. And this, too, harms both the target’s and the public’s First Amendment interests.
Fear, and speech, are thus on both sides of threats cases, and also many stalking cases. Courts’ doctrinal choices in threats and stalking cases sometimes chill speakers’ expression. And sometimes they instead permit the silencing of targets’ speech. This Essay asserts that a robust commitment to free speech requires attention not only to the speech deterred by legal standards that are too quick to punish speakers, but also to the speech silenced when law fails adequately to protect the targets of threats and of stalking from reasonable fear for their safety.
When courts ignore targets’ free speech interests to privilege defendants’ free speech interests, they pretend to make hard First Amendment problems easy. But principled problem-solving requires that we take care to recognize and explain what makes difficult problems difficult, as is the case here, where we must choose between speakers’ and targets’ important free speech interests.
Courts must, and do, make choices all the time when calibrating the categories of unprotected speech (for example, in true threats cases), and when otherwise applying First Amendment doctrine (for instance, in stalking cases that do not allege true threats). The Court’s choice in Counterman v. Colorado to privilege speakers’ free speech interests over targets’ was a choice—but that choice was neither inevitable nor necessarily speech-protective. When we illuminate, rather than obscure, the free speech injuries experienced by the targets of threats and stalking, we can identify doctrinal choices that attend to targets’ expressive interests as well as defendants’.
Download the article from SSRN at the link.