Genevieve Lakier (University of Chicago Law School) & Evelyn Douek (Stanford Law School) have posted The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition (California Law Review, Vol. 113, 2025) (73 pages) on SSRN. Here is the abstract:
In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But this is puzzling because Counterman was not in fact convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone in order to be guilty of the crime. This Article argues that the Supreme Court’s confusion about the most basic facts of the case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence. These pathologies are a consequence of the impoverished view of the First Amendment’s boundaries depicted in the Court’s recent decisions, which suggest that the First Amendment’s doctrinal terrain can be described by a simple list of historically unprotected categories. This thin account of the First Amendment, and the doctrinal distortions it creates, are not inevitable, however. The Article argues for an alternative, more multi-dimensional approach to the question of the First Amendment’s boundaries—one that rests on a richer understanding of the traditions of speech regulation in the United States—and sketches out its implications for the law of stalking and, potentially, many other areas of free speech law. Courts do not need to deny the facts of the cases they adjudicate to craft a First Amendment jurisprudence that is doctrinally coherent, historically informed, and normatively desirable.
I didn't find Counterman persuasive from an originalist perspective (Justices Thomas and Barrett dissented, though more on a doctrinal approach). Even if one assumes that the original meaning of the First Amendment is strongly protective of political speech (as I do), it's not hard to think that modern free speech doctrine may well be far afield from the original meaning in a number of more peripheral areas. This paper isn't really originalist, but it might suggest some ways originalism could rethink some outlying First Amendment doctrines.
UPDATE: At Legal Theory Blog, Larry Solum says: "Highly recommended. Download it while it's hot!", and adds:
I do wish this article was longer, with more discussion of the way forward! 73 great pages, but 100 would have been lovely.
I would say, that can be the next article!
Posted at 6:11 AM