Musician Coles Whalen received 100,000s of messages on Facebook over several years from Billy Raymond Counterman. There were harmless offers to bring over garden tomatoes and notes about her former automobiles. There were also rants expressing frustration and telling her to “die.” Whalen never responded to his messages and repeatedly blocked him whenever he created a new profile.
Whalen subsequently learned that Counterman was already on federal probation after another case and grew fearful for her safety. After years of sending messages to Whalen, Counterman was convicted of stalking and imprisoned. However, the U.S. Supreme Court recently heard the case and ruled 7-2 in favor of Counterman.
First Amendment protection
The legal issues in dispute came from a freedom of speech issue surrounding protected and unprotected free speech. The case hinged on whether Counterman, 61, was aware that his messages could be perceived as threatening. The high court believed that, despite the volume of messages Counterman sent, he was unaware that the attention was threatening. He has an undisclosed mental illness and intended no harm toward Whalen. In other words, there was no intent of wrongdoing, a major factor for state and federal charges and convictions.
State has lower threatening speech standards
Colorado’s current laws state that the individual who is a “true threat” can be imprisoned for writing threatening messages that the recipient considers frightening or intimidating. As the seven-year-old dispute shows, the Colorado law conflicts with First Amendment rights. Counterman left the courtroom in handcuffs after the trial and served two years in prison.
Is it overreach?
Everyone deserves to feel safe from repeated threats made by individuals. Moreover, true threats are not protected under the First Amendment, but the standards vary from state to state and federal court to federal court. Since Colorado’s current threshold for valid threat is comparatively low, this high court ruling will likely prompt other appeals or case dismissals.