The Supreme Court Just Legalized Stalking

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The Supreme Court majority describes its holding last week in Counterman v. Colorado as a vindication of the First Amendment and a principled defense of free speech. Indeed, influential civil libertarian organizations were quick to celebrate the decision.

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Based on these characterizations, one could be forgiven for thinking that the Counterman case involved controversial political advocacy, an ambiguous offhand remark, or uncivil name-calling. In fact, however, the case is about a relentless, six-year stalking campaign by a man determined to insert himself into a woman’s life without her consent. The woman at the heart of the case, C.W., was a thriving local musician until Billy Counterman became obsessed with her. Counterman targeted C.W. with thousands of unwanted messages, asking her questions about her personal life, insinuating that he was physically surveilling her, and telling her he wanted her to die. C.W. had no idea who Counterman was or what he looked like; she became increasingly anxious about performing live and connecting with her fans out of fear that he might be in the audience. She tried to ignore the messages, but when she discovered that Counterman had twice been arrested for threatening women with bodily harm (including threats to “put your head on a f****n sidewalk and bash it in,” and to “rip your throat out on sight”), she contacted law enforcement. Counterman was eventually arrested and convicted of stalking, but not before C.W. had stopped performing, began varying her daily routes, and started carrying a gun.

n many ways, C.W.’s experience was typical of that of many stalking victims: The stalking upended her career, her mental health, her relationships—in short, her entire life. What is rare about her case is that law enforcement actually took her report seriously, and that Counterman was actually convicted. In nearly half of all reported cases, police take no action at all and only make arrests in a tiny fraction. Given that more than half of all female homicide victims are stalked before they are killed, Counterman’s conviction may very well have saved C.W.’s life.

That potentially lifesaving outcome is now unavailable to other stalking victims because the Supreme Court has declared stalking to be protected by the First Amendment, overturning Counterman’s conviction and asking a lower court to reconsider it in light of its new standard that demands prosecutors show that stalkers consciously disregarded a serious risk that their messages would be perceived as threatening. The court ignores the reality that many stalkers fervently believe that their actions are or should be welcomed by their victims; indeed, the court’s holding means that the more delusional the stalker, the more the stalking is protected. In addition to preemptively insulating stalkers from criminal conviction as well as civil restraining orders, the holding elevates stalkers into free speech heroes. In doing so, the court has assured stalkers that they will not only be able to terrorize with impunity, but with acclaim.

The Supreme Court on Tuesday wiped away a lower court decision upholding the stalking conviction of a Colorado man who sent hundreds of messages to a woman over Facebook.

The justices said the court had used the wrong standard in convicting the man and sent the case back down with a new test to apply to the case. The justices said it would suffice for prosecutors to show that the speaker was aware that his speech could be viewed as a threat and that the speech was reckless, even if not intentionally threatening.

The court’s move could worry those working to combat stalking in the age of social media where the internet has expanded the number of violent threats, enabling activities that include online harassment and intimidation. They fear the court’s standard could raise the bar for the government when trying to prove that a series of messages amounted to a true threat, unprotected by the First Amendment.

While advocates for abused women have pushed the court to protect less such threatening speech, free speech advocates have expressed concern that the court could act too broadly and chill speech that is misunderstood to be a threat.

The case involves a Colorado man, Billy Raymond Counterman, who was convicted of stalking a songwriter, Coles Whalen, after sending her hundreds of direct messages on Facebook.

Whalen found the messages “creepy” especially because they indicated he was surveilling her. She never responded, but instead, repeatedly tried to block him on Facebook. But he continued to create new accounts in order to send her messages.

The messages –over a two year period– included:

• “was that you in the white Jeep?”

• “seems like I’m being talked about more than I’m being talked to. This isn’t healthy.”

• “You’re not being good for human relations. Die. Don’t need you.”

At one point he asked her for a “hot date at Wal-Mart” and another time expressed anger and frustration at her lack of response.

Whalen was so upset she took preventative measures such as hiring extra security and even canceling some of her performances. Ultimately, she filed suit, and Counterman was found guilty of stalking and sentenced to four and a half years in prison. But his lawyers argued that the conviction violated his free speech rights.

The Supreme Court has defined “true threats” – those that are unprotected by the First Amendment – as statements by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence. The speaker need not carry out the act.

But lower courts have been divided over whether the government must demonstrate that the speaker knew the threatening nature of the speech. Some courts have said it’s enough that a “reasonable person” recognized the threat.

Sounds like some judges need some stalkers.

Sounds like some judges need some stalkers.