Convicted Cyberstalker Cites 1st Amendment in His Defense at Supreme Court

The U.S. Supreme Court in Washington on March 23, 2023. (Richard Moore/The Epoch Times)

A Colorado man’s lawyer told the U.S. Supreme Court on April 19 that the man was unfairly convicted of making threats against an entertainer because his intent in trying to communicate with her was never taken into account.

The case raises an important First Amendment issue in an age when so much communication takes place online using text, a medium that lacks the kind of nonverbal cues present in in-person communication and sometimes makes it difficult to ascertain the intent of the speaker.

Billy Ray Counterman was convicted of stalking under Colorado law after he repeatedly contacted singer-songwriter Coles Whalen over the course of two years using various Facebook accounts. Whalen never responded and blocked Counterman, but he kept creating new profiles to contact her.

Counterman was sentenced to 4 1/2 years in prison.

Among the messages were “Was that you in the white Jeep?” and “I’m currently unsupervised. I know, it freaks me out too, but the possibilities are endless.”

Counterman also wrote Whalen, saying “You’re not being good for human relations. Die. Don’t need you” and “Staying in cyber life is going to kill you. Come out for coffee. You have my number.”

State Law

Colorado’s stalking law forbids “knowingly ... repeatedly ... [making] any form of communication with another person ... in a manner that would cause a reasonable person to suffer serious emotional distress and [that] does cause that person ... to suffer serious emotional distress.”

The Supreme Court agreed on Jan. 13 to hear the case because courts across the country differ widely in how they interpret what constitutes a “true threat” under the U.S. Constitution.

To establish that a statement is a true threat that isn’t protected by the First Amendment, prosecutors have to demonstrate that the speaker subjectively knew or intended the threatening nature of the statement or that it’s sufficient to show that a “reasonable person” would regard the statement as a threat of violence.

Nine federal courts of appeal and 15 states, including Colorado, as well as the District of Columbia, use versions of an objective standard that looks at how reasonable people would interpret the speaker’s words. Two federal courts of appeal and four states rely on a subjective standard that requires proof that the speaker meant the statement to be a threat. Georgia insists that the speaker must know the statement will be seen as a threat, while Illinois and Pennsylvania require that there be recklessness as to the statement’s threatening nature.

“At least nine states are subject to conflicting state and federal standards, so that the constitutional protection given speech depends on the happenstance of the courthouse in which the case is prosecuted,” the court papers read.

In Counterman’s case, the state-level jury applied a purely objective test for deciding whether his statements constituted true threats, but if he had been tried in federal court in Colorado, he argues that his mental state would have been relevant, according to U.S. v. Heineman, a 2014 decision by the U.S. Court of Appeals for the 10th Circuit.

The First Amendment “[requires] the government to prove in any true-threat prosecution that the defendant intended the recipient to feel threatened,” the decision states.

Intent of Speech

Counterman’s attorney, John Elwood, told the justices during oral arguments on April 19 that the Supreme Court “has long held that because of the importance of free speech in our country, categorical exceptions to the First Amendment’s prohibition on content regulations must be well defined and narrowly limited, and speech cannot be exempted without proof of a long-settled tradition of subjecting that speech to regulation.”

In his client’s case, the state didn’t “come close to meeting its burden of showing a long-settled tradition of punishing true threats without proof the speaker knew that his statement would cause fear,” he said.

“Criminalizing misunderstanding is especially dangerous in an age when so much communication occurs on social media, which brings together strangers in an environment that removes much of the context that gives words meaning. And it chills expression by imposing prison time on speakers who do not tailor their views to suit their audience,” Elwood said.

Justice Samuel Alito told Elwood that it was “inevitable that speaker intent is going to be important,” a sentiment that several justices seemed to agree with.

No one would think that he was threatening to throw a temper tantrum if he said he would “throw a fit” if an auctioneer declined to speak more slowly, Alito said.

Chief Justice John Roberts said ambiguities existed in the messages.

The message of “You’re not being good for human relations. Die. Don’t need you,” could be seen as “hostile,” or it could be seen as a “‘you’re dead to me’ kind of thing.”

Justice Brett Kavanaugh pushed back against Elwood, saying his approach “would make it too easy for someone to say, ‘Oh, I was just joking, I was just kidding,’ and, therefore, threats that would be really quite dangerous in terms of leading to the next step of actually carrying through with the threat will not be addressed.”

1st Amendment Doesn’t Protect ‘True Threats’

U.S. Department of Justice attorney Eric Feigin told Kavanaugh that focusing on the speaker instead of the words alone was the wrong approach because it “impedes law enforcement from actually arresting and bringing charges at an early stage.”

“They have to wait a lot longer for the objective evidence to build up,” Feigin said.

Colorado Attorney General Philip Weiser said the intent of a speaker was irrelevant.

“True threats have always been prosecuted without protection by the First Amendment. Petitioner now seeks to impose a specific intent element onto this inquiry that’s required neither by history nor precedent,” he said.

“Requiring specific intent in cases of threatening stalkers would immunize stalkers who are untethered from reality. It would also allow devious stalkers to escape accountability by insisting that they meant nothing by their harmful statements.

“This matters because threats made by stalkers terrorize victims, and for good reason—90 percent of actual or attempted domestic violence murder cases begin with stalking.”

Justice Clarence Thomas told Weiser that people nowadays misinterpret communication more than they used to.

“We’re more hypersensitive about different things now, and people could feel threatened in different ways,” and this means the definition of the “reasonable person” may have changed, he said.

Justice Elena Kagan said after reciting some of the messages aloud that she was taking it “as a given that this can be objectively terrifying.”

Roberts asked Weiser why he believed that the message, “Staying in cyber life is going to kill you. Come out for coffee. You have my number” was threatening.

Weiser said when placed in context, the speaker was saying, “If you don’t come out for coffee with me, bad things are going to happen to you.”

The chief justice cut the lawyer off, saying, “I’m sorry. This isn’t remotely like that.”

The message says, “Staying in cyber life is going to kill you,” Roberts said. “I can’t promise I haven’t said that.”

The Supreme Court is expected to render a decision in Counterman v. Colorado, court file 22-138, by June or July.