January 16, 2023
You may have missed it but late last week the Supreme Court decided to hear eight new cases this term. There is one that not a lot of people are talking about but I think you’re going to be interested in. It has to do with free speech and online stalking.
The very relevant and interesting question at the center of all this is – at what point does a person’s free speech stop and a true threat to someone else begin.
The Supreme Court has decided to hear Counterman vs Colorado. Billy Raymond Counterman was convicted of sending upwards of a million Facebook messages to Coles Whalen a female musician in Denver. Counterman’s messages were sent over multiple years and according to Whalen were creepy, weird and became stalkerish. She blocked him repeatedly he kept finding ways to send these messages. Whalen became fearful, withdrawn and anxiety ridden. She even stopped booking shows because she was afraid counterman would show up and hurt her or worse – I can’t explain his messages any further because this video will be taken down. You get the picture. Police ultimately arrested counterman in May 2016 and a jury convicted him of stalking. A judge sentenced counterman to four and a half years in prison. Counterman appealed saying the state’s stalking laws infringed on his free speech.
Colorado’s law says stalking can occur when a person repeatedly contacts, surveils or communicates with an individual in such a way that a reasonable person would be afraid or feel serious emotional distress. The courts found counterman – through all those million messages — was a true threat to Whalen. Counterman’s attorneys say he didn’t intend to make a threat nor did he know his million messages that continued after being blocked would be perceived as a threat.
So the question before the Supreme Court is — what is a true threat? Is it enough that a reasonable person would see a statement as a threat? Or is it up to a prosecutor to show the person making the statement knew or intended the statement to be a threat? The Supreme Court has established that true threats do not have first amendment protection. And to be a classified as a true threat – someone has to communicate a serious intent to commit violence. But we’ve seen repeatedly in these types of online stalking cases it’s often not just one explicit message that is a threat, but all the messages in context and in totality that become threatening.
It’s likely the court will hear this case in April.
Counterman’s appeal to SCOTUS here.
Full docket for Counterman here.
