The Supreme Court on Tuesday reversed the conviction of a man who made extensive online threats to a stranger, saying free speech protections require prosecutors to prove the stalker was aware of the threatening nature of his communications.
In a 7-2 ruling authored by Justice Elena Kagan, the court emphasized that true threats of violence are not protected by the First Amendment. But to guard against a chilling effect on non-threatening speech, the majority said states must prove that a criminal defendant has “disregarded a substantial risk that his communications would be viewed as threatening violence.”
Justices Clarence Thomas and Amy Coney Barrett dissented.
The case concerned a Colorado law used to convict Billy Raymond Counterman of stalking and causing “emotional distress” for Coles Whalen, a singer-songwriter he had never met. Counterman, who had previously been convicted of making threats to others, served four years in prison in the Whalen case.
The court’s interest involved the question of when statements, especially those made online, can be considered “true threats” not protected by the First Amendment.
Counterman contended the state must show that the speaker intends the messages to be threatening. Colorado, backed by the Justice Department and a majority of states, says it should be enough that a “reasonable” recipient feel the threat of physical harm could be imminent, based on the context of the circumstances.
The case now returns to the lower courts, where prosecutors could decide to retry the case under the new standards set by the Supreme Court’s decision.
Whalen testified at Counterman’s trial, and told The Washington Post in an interview, that she was terrified by Counterman’s relentless pursuit. She said she never knew if her stalker would be in the crowd at her performances. It affected her mental health, caused her to cancel concerts and hampered her career and even caused her for a time to quit, she said.
When she blocked Counterman from her Facebook page, which she used to publicize her appearances and her work, he formed new profiles and continued the messages for years.
Whalen eventually sought help from a lawyer, who researched Counterman’s background and told her of his previous convictions. “I was already scared, but then I was terrified,” Whalen said in the interview. “I thought, ‘Why did I wait so long?’”
The court last confronted the true threats question in 2015, when it reversed the conviction of a Pennsylvania man who had made violent and graphic statements against co-workers and his estranged wife. Anthony Elonis said his postings were therapeutic rants. The court found that federal law required more evidence about Elonis’s intent but left the First Amendment question unsettled, opening the door for this lawsuit.
The case is Counterman v. Colorado.