The case involves questions about what constitutes a "true threat."
- Click here for the decision in COUNTERMAN v. COLORADO.
- Click here for ScotusBlog's page on COUNTERMAN v. COLORADO.
- Click here for the article.
The Supreme Court on Tuesday threw out the conviction of Billy Raymond Counterman, a Colorado man who was sentenced to four-and-a-half years in prison for stalking based on his Facebook messages. By a vote of 7-2, the justices ruled that the state courts had applied the wrong test to determine whether Counterman’s statements were “true threats,” which are not protected by the First Amendment. Instead of focusing on whether a reasonable person would regard the man’s statements as a threat of violence, the Supreme Court ruled, courts should look at whether prosecutors had shown that Counterman had made the threats recklessly – that is, whether he was aware that the recipient, local Colorado musician Coles Whalen, could regard his speech as a threat, but made them anyway.
Justice Elena Kagan wrote for the court, with an opinion that was joined by Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson. Justice Sonia Sotomayor wrote an opinion, joined by Justice Neil Gorsuch, in which she agreed with the result that the court reached but not all of its reasoning. Justice Clarence Thomas filed a dissenting opinion and joined a dissenting opinion by Justice Amy Coney Barrett.
The events leading to Thursday’s ruling began nearly a decade ago, when Counterman sent a Facebook friend request to Whalen, a singer-songwriter then based in Denver whose career was on the rise. Over the next few years, Counterman sent messages to Whalen that she described as “weird” and “creepy,” and although she attempted to stop the messages by blocking him on Facebook, Counterman would simply create new accounts.
When the messages became increasingly menacing – referring to having seen her in person and suggesting that she should die – Whalen’s mental health declined. She canceled appearances, started to carry a gun, and eventually left Colorado for the east coast.
Prosecutors in Colorado charged Counterman with stalking. At trial, he argued that his messages to Whalen were not “true threats” because he didn’t actually intend to harm Whalen; instead, he contended, they were speech protected by the First Amendment. The trial court rejected that argument and he was convicted and sentenced to four-and-a-half years in prison; a Colorado appeals court upheld his conviction in 2021.
Counterman came to the Supreme Court last summer, asking the justices to weigh in. In a 14-page opinion on Tuesday, the justices sent his case back to the state courts, holding that the state courts should have applied a different test to determine whether Counterman’s statements were “true threats.”
