“You can convey that message in a hostile way, or in a way that’s sort of like, you know, ‘you’re dead to me’ kind of thing,” Roberts said.
And so it went for nearly two hours as the Supreme Court picked at 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.
Now the Supreme Court is using his prosecution to once again confront the question of when statements, especially those made online, can be considered “true threats” not protected by the First Amendment. Counterman contends 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.
Counterman’s lawyer at the Supreme Court, John P. Elwood, said that standard could lead to “criminalizing misunderstanding.”
It would be “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,” Elwood said. “And it chills expression by imposing prison time on speakers who do not tailor their views to suit their audience.”
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Other justices besides Roberts, both conservative and liberal, seemed receptive to Elwood’s argument.
“We live in a world in which people are sensitive and maybe increasingly sensitive,” said Justice Neil M. Gorsuch, mentioning professors who issue “trigger warnings” when discussing topics that could be upsetting. “What do we do in … a world in which reasonable people may deem things harmful, hurtful, threatening? And we’re going to hold people liable willy-nilly for that?”
Justice Sonia Sotomayor, who in the past has expressed similar concerns about convictions that do not take into account whether the speaker had a criminal intent, was critical of the Colorado law for that reason.
“It would seem to me whenever you’re trying someone for a First Amendment violation involving speech for any conduct, criminal or civil, that the speaker’s intent should be part of the presentation the jury gets,” Sotomayor said. “But here, the court and the prosecutor argued that the intent was irrelevant, that he [Counterman] couldn’t present any evidence about his intent, correct?”
“That is exactly right,” Elwood answered.
Roberts picked through the trove messages Counterman sent to Whalen, seeking to show how they could be read more than one way. “‘Staying in cyber life is going to kill you,’” Roberts read. Then he added, apparently referring to his children and their screen time: “I can’t promise I haven’t said that.”
Elwood drew on his own experiences. “My mother said to me virtually every day of my childhood, ‘drop dead.’ And yet, you know, I was never in fear because of that, and so, you know, context meant a lot.”
Whalen, though, was terrified by Counterman’s attention. She testified at Counterman’s trial, and told The Washington Post in an interview, that 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?’”
There were similar arguments Wednesday from Colorado Attorney General Philip J. Weiser (D) and Eric J. Feigin, representing the Justice Department.
“A serious expression of an intent to cause unlawful physical violence directly causes life-changing harms and does not contribute to the marketplace of ideas, regardless of what the perpetrator was thinking,” Weiser said. He added: “Threats made by stalkers terrorize victims and for good reason — 90 percent of actual or attempted domestic violence murder cases begin with stalking.”
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Justice Elena Kagan said that no matter whether people are becoming more sensitive, the court should “take it as a given” that Counterman’s actions over two and a half years were “objectively terrifying.” Kagan wondered whether a solution might be for the court to rule that prosecutors must prove that a speaker’s words were reckless, something suggested in the Justice Department’s brief.
Weiser said one problem would be when the person making the threat is delusional, as Counterman was. He believed he and Whalen knew each other and she was sending him messages in books left at the library.
“A delusional individual who is a stalker will often say: ‘I believed we were in a relationship, I thought what I was saying was benign,’” Weiser said. “And it’s possible they could believe that, and yet, once they’re really rebuffed, they can then turn violent, which means the following: Do you have to wait until the person actually engages in violence before you do something about what is an objectively terrorizing threat?”
Several justices wondered whether changes in the law might make it more difficult for people to take civil action against stalkers, or get protective orders.
Elwood said no, arguing that in states that require showing someone’s intent, there is no evidence that standard causes problems securing a protective order for a victim or convicting someone in a criminal case.
Weiser countered that many courts across the country apply the same standard as Colorado, and there is no history of the kind of mistaken convictions that the free-speech organizations supporting Counterman warn could come as a result of “hypersensitive” individuals feeling threatened. Judges and juries are guardrails against that, he said.
The court last confronted the true threats question in 2015. 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.
Feigin, from the Justice Department, provided the court an update on that case Wednesday. “It did not deter him. It did not stop him,” Feigin said. “We recently reconvicted him for another series of threats, including threats to an assistant U.S. attorney.”
The case is Counterman v. Colorado.