The Supreme Court recently heard the oral arguments for a First Amendment case that could have far-reaching consequences across a broad spectrum of legal concerns. These could include the duties that shopkeepers and business owners owe to their customers and the public at large.
This is because, as The Hill noted, the case calls into question the very idea of the “reasonable person” standard. For ages, the reasonable person has served as a legal conceit, allowing juries to consider how an objectively reasonable person might behave in a given situation.
Counterman v. Colorado
The case in question is Counterman v. Colorado, and it has made its way to the Supreme Court after Counterman appealed his 2017 stalking conviction. At that time, a jury found Counterman guilty of stalking based on the fact that he had sent a barrage of threatening Facebook messages to a musician. The court also ruled that the First Amendment did not protect Counterman’s right to send the messages because they were “true threats.”
The idea of the “reasonable person” was central to this decision. The jurors reviewed the messages according to the reasonable person standard. They found that a reasonable person, in the same situation, would understand the messages’ threatening nature. However, Counterman claimed that he did not intend his messages as threats. He argues that the Court should consider his intent and the state of mind he was in when he sent the messages.
If the Court agreed that Counterman’s subjective state of mind was essential to the case, Colorado would have to prove one of three different things:
- That Counterman intended his messages as threats
- That he knew his target would interpret them as threats
- That he recklessly ignored the risk that his target would interpret his messages as threats
Colorado maintains that the reasonable person standard is appropriate because it already considers context and because the threats caused real damage. The singer-songwriter feared the threats enough that she canceled performances and suffered a lapse in her mental health.
However, The Hill notes that the Supreme Court may now revisit the whole “reasonable person” standard in light of its concerns about societal hypersensitivity. The Hill quoted Justice Amy Coney Barrett, who asked, “Who is the reasonable person?” Ignoring the fact that the reasonable person has always been a fictional concept, she added that people might now “be more sensitive” to certain ideas than they were previously.
The Reasonable Person in Business Litigation
The way the Supreme Court treats the idea of the “reasonable person” standard in this case matters to business owners because the standard is common in all forms of litigation. It is, as Forbes notes, especially prevalent in negligence cases, such as premises liability.
In such cases, plaintiffs commonly assert that defendants failed to uphold one or more of their duties of care. And, in nearly all cases, that duty is measured against the duty a reasonable person would expect to take.
Here, we get the legal nuances of the matter. The “reasonable person” is meant to be an objective standard. It compares the actions of the defendant to those of a fictional person who meets a few key standards:
- Follows the law
- Does not seek to put themself or others in danger
- Takes reasonable steps to minimize unavoidable dangers
But the standard also acknowledges differences based on context. Courts expect doctors to possess a higher level of life-saving medicine than a layperson, and that means a doctor’s “reasonable” response to a medical crisis should vary from an untrained person’s. Similarly, courts do not expect business owners to address dangers of which they have no knowledge nor should be expected to know about. But some parties may argue that a “reasonable” business owner would take steps to remain informed.
These lead to questions about how jurors should see a reasonable person. Plaintiffs and defendants commonly try to portray the “reasonable person” in a way that best complements their cases. To do so, they may call upon expert witnesses and present evidence-based narratives that help jurors place themselves in this reasonable person’s shoes. Accordingly, by changing the shape of this reasonable person, the lawyers change the way the jurors will measure the reasonable person’s response.
And by changing the expectations for the reasonable person’s response, the lawyers may shift the standard of proof for the whole case.
The Fate of a Legal Tradition Is at Stake
The Supreme Court’s opinion on Counterman v. Colorado could either reaffirm the reasonable person standard. Or it could push courts throughout the United States to move away from measuring people’s actions against those of a fictional, objective person in the same situation.
If the case does lead the Court to strike down the reasonable person standard, the impact won’t be limited to criminal law. It could affect everything from personal injury cases to premises liability and contract disputes. The reasonable person standard may not be as objective or clear as lawmakers might like, but it has served for more than 100 years. If the standard goes away, businesses would need to evaluate how the change could affect their cases and their strategies.