WASHINGTON – The Supreme Court on Tuesday sided with a man convicted of stalking after he sent thousands of Facebook messages to a singer-song writer in Colorado she viewed as “creepy,” ruling that his words were protected under the First Amendment because they were not a true threat.
The appeal from Billy Counterman asked the Supreme Court to decide what constitutes a “true threat” that can be prosecuted as a crime versus what types of menacing language is protected under the First Amendment.
Counterman claimed he did not intend to threaten the musician, Coles Whalen, with his thousands of messages.
In a 7-2 decision, the court ruled that prosecutors must show a defendant had some subjective understanding of his statements’ threatening nature.
In Counterman’s case, prosecutors had to show only that a reasonable person would understand his statements as threats. “That,” Justice Elena Kagan wrote for the majority, “is a violation of the First Amendment.”
Some of the messages were laden with profanity and others suggested Counterman had sought the musician out in public.
“Was that you in the white Jeep?” one of the messages read. “You’re not being good for human relations. Die. Don’t need you,” read another. “Seems like I’m being talked about more than I’m being talked to. This isn’t healthy,” Counterman wrote in another.
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“Staying in cyber life is going to kill you,” Counterman wrote at one point. “Come out for coffee. You have my number.”
After Whalen secured a protective order in 2016, Counterman was arrested for stalking under a Colorado law that bars “knowingly…repeatedly” making any form of communication with another person that “would cause a reasonable person to suffer serious emotional distress.” The trial court ruled that his messages constituted a “true threat” and therefore didn’t deserve protection under the First Amendment.
A jury convicted Counterman and he was sentenced to four and a half years in prison.
Counterman acknowledged that his messages were “annoying” and “weird.” But he argued that, in determining whether he was guilty of stalking, courts should have considered whether he intended the messages to be threatening. A state appeals court in Colorado upheld Counterman’s conviction in 2021 under a different standard: That a person could “reasonably perceive” that the threats were serious.
