WASHINGTON, D.C. — The United States Supreme Court has ruled to make it more difficult to convict a person of making a violent threat, including against elected officials like members of Congress and the president.
The question for the court was whether prosecutors must show that a person being prosecuted for making a threat knew their behavior was threatening or whether prosecutors just have to prove that a reasonable person would see it as threatening.
This all came about when Billy Counterman, a man convicted in 2017 of stalking Colorado musician Coles Whalen, challenged his conviction on the grounds his unsolicited and unwelcome social media messages were protected free speech.
He was sentenced to four and a half years in prison.
The Denver Post reported in April that Counterman sent as many as 1,000 messages to the musician on Facebook during a two-year span. She ignored his messages and repeatedly blocked him, but he continued to send messages and was frustrated by her lack of response.
The messages included:
“You’re not being good for human relations,” Counterman wrote in one message. “Die. Don’t need you.”
Was that you in the white Jeep?” he wrote in another message.
“Five years on Facebook. Only a couple physical sightings,” he said in another note.
Evidence presented during the case said the musician had “a lot of trouble sleeping” and suffered from severe anxiety as a result. She stopped walking alone, declined social engagements, and canceled some of her performances, even though that meant a financial loss for her.
Some states require judges and jurors to consider the speaker’s state of mind and intent when a threat was made. But other states, including Colorado, consider only the impact of the threat on a “reasonable person,” not the threat-maker’s intent under current law.
Colorado Attorney General Phil Weiser argued during the case that the speaker’s intent should not be considered when determining whether a statement was a "true threat" because doing so would make it easier for people who are delusional or dishonest to escape criminal prosecution.
The country's high court made a 7-2 ruling Tuesday in favor of Counterman, with Justice Elena Kagan writing for the majority.
Colorado Attorney General Phil Weiser released the following statement Tuesday in response to the high court's decision:
“Stalking is a serious crime that can terrorize and upend victims’ lives. Today, based on an unfortunate view of the First Amendment, the U.S. Supreme Court made it more difficult to stop stalkers from tormenting victims."
He goes on to say, "According to the Court, protecting the ‘speech’ of threatening stalkers matters more than guarding against the life-changing harms caused to those made to fear for their lives."
This issue has a years-long history in Colorado. There was a case that went before the state's Supreme Courtstemming to an incident between two students from two different states communicating with each other via Twitter in the wake of the Arapahoe High School shooting in 2013.
The Twitter communications became increasingly more aggressive until one student started making threats to the other, writing things like, "Let me catch you away from school you is a dead man." And, "Trust me I'm not afraid to shoot."
The tweets led to an arrest and the student, only identified as "RD," was convicted of harassment. That verdict, however, was overturned by the Colorado Court of Appeals after RD's defense team argued the tweets were not a real threat and should be protected by free speech laws.
The Associated Press contributed to this story.
