April 24, 2023

SCOTUS: “True Threat” Decision Must Protect Victims of Stalking

Meg Garvin, MA, JD, Mst

Executive Director

Last week, SCOTUS heard oral arguments in Counterman v. Colorado, in which Colorado musician, Coles Whalen, was threatened by Billy Counterman for years. 

Ms. Whalen received thousands of unsolicited messages from Counterman ranging from misdirected and unwanted affection to outward hostility.  From the messages it was clear that he had been watching her. Despite never responding to any of his messages and blocking Counterman at least six times, the messages intensified over time, including telling her to “die” and “f— off permanently.”

A Colorado jury found Counterman guilty of stalking. 

 Counterman appealed his conviction on First Amendment grounds. 

The First Amendment’s protection of speech is a critical right in this country.  It is well-established, however, that “true threats” aren’t protected by the First Amendment.  So the question in the case – what is a “true threat?”  More specifically, does a true threat require that the communicator subjectively intends a message to be threatening?

Counterman contends his conviction should be reversed because he did not actually intend the statements to be threatening.

NCVLI, along with co-amici Legal Momentum and AEquitas, argue that imposing a specific intent requirement would undermine criminal stalking laws and civil protection order schemas.  Further, it would impose yet another hurdle for victims of stalking and domestic violence  to overcome if they want to access justice despite the fact that these crimes are already severely underreported and under-addressed.  

When considering this case, the appellate court expressed particular concern about the “‘stakes of leaving true threats unregulated’” in the context of stalking, where “online communication can enable ‘unusually disinhibited communication’ from a perpetrator to a victim — ‘magnifying the danger and potentially destructive impact of threatening language on victims.’”

The stakes are indeed high. 

In order to protect victims of stalking and similar crimes, SCOTUS’ “true threat” decision must acknowledge the societal value of stopping threats – words can and do terrorize.