Freedom of speech is a bedrock protection in the Maine and United States Constitutions. To avoid chilling protected speech, the First Amendment covers speech that might be offensive, vulgar, or objectionable. The freedom to share provocative ideas and spark robust debate is essential to democracy, social justice, and progress.
It may seem counterintuitive to protect objectionable – even racist, sexist, and homophobic – speech in the name of social justice. However, silencing objectionable but non-violent speech intrudes on the broad free speech protections fundamental to the fight for progress.
Movements for gender and racial justice often use heated rhetoric to rally support. In 1969, a racial justice activist spoke to a crowd of several hundred people and said, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” Today, an activist might share a tweet with a similar sentiment, intending only to garner solidarity. To criminally charge that person would silence them. Activists would have to choose between risking conviction every time they say something that could be misinterpreted, and self-censoring.
Of course, even language that was not intended to be threatening can cause legitimate emotional and psychological harm. People targeted by threatening speech often censor themselves, fearing more abuse. The First Amendment does not allow targeted harassment or threats, or expression that creates a pervasively hostile environment.
But merely offensive or charged speech does not rise to that level – and censoring speech that was never intended to threaten carries dangerous implications for advocates, protestors, and journalists fighting for positive change.
Counterman v. Colorado:
Free speech protections under the First Amendment are broad, but they are not infinite. For example, the First Amendment does not prohibit the government from regulating or punishing speech that constitutes a true threat. This could include someone who deliberately threatens another person with death or serious harm, or who encourages others to threaten and harm a person.
In 2023, the U.S. Supreme Court clarified the requirements for convictions under the true threats exception in Counterman v. Colorado. It held that the First Amendment requires “subjective intent to threaten” as a necessary element of a true threat.
In other words, to meet the legal threshold for a “true threat,” the speaker’s own intent must be considered. This allows a jury to consider the speaker’s state of mind when the threat was made and ensures that speakers aren’t punished for failures to predict how people might interpret their speech. For instance, this could protect a person who says something they believe to be mundane that another person may find threatening.
Counterman’s Impact on Maine Law:
In light of Counterman, the Maine Supreme Court requested friend-of-the-court briefs on the constitutionality of Maine's anti-stalking statute as applied in State of Maine v. Jacob R. Labbe, Sr. The ACLU of Maine, along with the ACLU’s State Supreme Court Initiative, filed an amicus brief in response to this request.
State v. Labbe stems from the July 2022 conviction of Jacob Labbe, Sr., in Androscoggin County Superior Court. During the trial, the jury was told they could convict Labbe based solely on his speech. The prosecution emphasized to jurors that they did not have to find that Labbe understood or intended his speech to be threatening. Labbe was ultimately convicted on various charges, including violating Maine’s vague anti-stalking law. As a result, Labbe lost his liberty and was sentenced to 2.5 years in prison only for his speech.
Our brief argues that, under Counterman, Labbe’s conviction does not fall within the true threats exception because the jury was permitted to convict based on his speech alone. The jury was not required to find Labbe engaged in that speech with unlawful intent or even a conscious disregard of his speech’s likely impact. Therefore, we argued, the conviction for stalking violated the free speech protections of the Maine and U.S. Constitutions and must be overturned.
Ruling From Maine’s Highest Court:
In January 2024, Maine’s highest court affirmed the conviction. The court decided that, in this unique situation, the series of texts and voicemails Labbe sent consisted of a course of conduct, not speech. This ruling does not prevent freedom of speech considerations from being raised in future proceedings where the anti-stalking law could infringe on First Amendment rights.
While Maine’s vague anti-stalking statute was intended to punish people for stalking, the lack of clarity opened the door to the criminalization of protected speech. In March 2024, LD 2085 was enacted to amend the Maine anti-stalking law to align its language with the Counterman ruling, ensuring people cannot be prosecuted for speech protected under the Maine and U.S. Constitutions.
