Mary Anne Franks (George Washington University – Law School) has posted How Stalking Became Free Speech: Counterman v. Colorado and the Supreme Court’s Continuing War on Women on SSRN. Here is the abstract:
One of the most devastating, unprincipled, and dangerous decisions handed down by the Supreme Court in 2023—a decision that jeopardizes women’s rights to speak, to associate, to work, and to live—was not the product of the conservative supermajority, but of an alliance of the entire liberal wing with the majority of the conservatives. The decision in Counterman v. Colorado, which effectively established a First Amendment right to stalk, was authored by Justice Elena Kagan for a 7–2 court; only Justice Clarence Thomas and Justice Amy Coney Barrett dissented. Even as stalking experts and victim advocates emphasized that the decision means that more women will die at the hands of their stalkers, self-styled civil libertarians across the political spectrum celebrated the outcome as a victory for First Amendment. In Counterman, the liberal Justices proved that they were no less practiced in the art of undead constitutionalism than the conservatives. Whatever else their differences, conservative and liberal factions in and outside of the Court agree that the Constitution demands the sacrifice of women’s lives to men’s speech.