A Colorado appellate court’s ruling in an online stalking case has led to a review by the U.S. Supreme Court on what the government must show about the speaker’s state of mind for speech to be considered a “true threat” and not protected under the First Amendment.
In People v. Counterman (2021), the Colorado Court of Appeals affirmed the conviction of Billy Raymond Counterman who sent numerous unanswered and increasingly disturbing messages over two years to a local musician, Coles Whalen, over Facebook. When she would block his messages, Counterman would create a new account and continue to send her messages.
Whalen became frightened, canceled some of her shows and obtained a protective order.
Police arrested Counterman and charged him with stalking. He was convicted under a state law that makes it illegal to repeatedly follow, approach, contact, place under surveillance or “make any form of communication…in a manner that would cause a reasonable person to suffer serious emotional distress…”
A jury found him guilty and sentenced him to four and one-half years in prison.
Stalker seeks to overturn conviction, saying messages protected under First Amendment
Counterman appealed the conviction. He argued at the state appellate court that the state’s stalking statute was unconstitutionally broad and that it impermissibly criminalized speech that was protected under the First Amendment. He said his messages didn’t rise to the level of “true threats” because they weren’t explicit statements of “purpose or intent to cause injury or harm” to the woman, who was referred to by her initials, C.W., in the court case.
“This limited characterization of a true threat misses the mark by ignoring the importance of the context in which a statement is made,” the Colorado Court of Appeals said in rejecting Counterman’s argument.
The appellate court relied on the Colorado Supreme Court’s definition of a “true threat” as a “statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence.”
Court said context of Facebook messages determined nature as ‘true threat”
The appellate court reviewed the messages and found that while they did not explicitly threaten the woman’s life, they suggested a desire to see her dead. The messages also reflected “a feeling of entitlement to C.W.’s response or engagement that, when met with silence, turn quickly to hostility toward her,” the court said.
Messages about secretly watching her and becoming jealous about her “partner” elevated Whalen’s fear. Other messages implied that Counterman suspected Whalen had contacted authorities. It also appeared that he had become delusional, referring to his phone being tapped.
Whalen said that, as a musician, she typically accepted any friend request she received on both her private and public Facebook accounts and she believes that this is why she initially accepted Counterman’s request. But all of the direct messages to her were uninvited and Whalen never messaged back or engaged in any conversation with Counterman.
That Counterman, after being blocked, circumvented her efforts with new Facebook accounts to send messages supported the inference that he knew that his messages would cause an emotional response, the court said.
“Given this context and based on our independent review of the records, we conclude that Counterman’s messages were true threats — threats that are not protected speech under the First Amendment (or the state constitution),” the court said.
Court notes how online communication can magnify sense of danger
The court noted that context “can cut either way.”
“(I)t can ensure that protected speech remains protected, and that unprotected speech may be criminalized.”
The court noted that in Watts v. United States (1969), “the plain language of the defendant’s statement that ‘if they ever make me carry a rifle, the first man I want in my sights is L.B.J.,’ divorced from any context, could certainly have been interpreted as a serious threat against the then-President’s life. But it was the context in which the statement was made — the identity of the speaker and his relationship (or lack thereof) to President Johnson, the broad audience of the statement of fellow participants in an anti-Vietnam War rally (as opposed to a statement to President Johnson directly), the political and social context of the time, and the hyperbolic tone of the statement —that made the statement protected political opinion rather than a true threat against the President’s well-being.”
The appellate court also noted how, in the context of stalking, online communication can enable “unusually disinhibited communication” to a victim, “magnifying the danger and potentially destructive impact of threatening language on the victim.”
U.S. Supreme Court to review what constitutes ‘true threat’
The Colorado Supreme Court declined to review the appellate court’s ruling and Counterman appealed to the U.S. Supreme Court, arguing that Colorado law was unconstitutional because its standard of proof showing intent of a crime was too low.
Whalen argues in her amicus brief to the Supreme Court that reversing Counterman’s conviction would allow egregious conduct to go unpunished, leaving innocent victims unprotected.
The Supreme Court has ruled twice in cases of criminal laws about threatening speech. In 2003, the Supreme Court in Virginia v. Black upheld a Virginia law making it illegal to burn a cross in public with the intent to intimidate others, finding that cross-burning could be viewed as a “true threat” and unprotected under the First Amendment.
Within a decade, the Court in Elonis v. United States (2015) reversed a criminal conviction under a federal stalking statute because the jury was instructed that it only had to show a reasonable person would view speech as threatening and not consider the mental state of the speaker. Although Elonis asserted that recklessness was not sufficient to show that he uttered a true threat, the court did not conclude what level of knowledge or intent would be necessary, leading to disagreements in lower courts.
The Court agreed to hear the Counterman case and oral arguments took place on April 19, 2023.
At issue is what must be proven by the government to establish that a statement is a “true threat” and unprotected under the First Amendment. Must the government prove that the speaker intended or knew the threatening nature of the statement (a subjective standard) or can it show the speech was of such a threatening nature that a “reasonable person” would regard it as a threat of violence (an objective standard)?