Supreme Court: Is Stalking Behavior Protected as Free Speech?

Free speech in America is once again on the line as the Supreme Court is hearing a case that would define the limits on speech, including cracking “threatening” jokes, without incurring any legal consequences. The ruling on the case, however, can potentially affect all speech.

The case Counterman v. Colorado was docketed before the Supreme Court of the United States (SCOTUS) in August last year after the Court of Appeals of Colorado ruled on it in July 2021. The story goes back to 2014 when a man named Billy Raymond Counterman, the petitioner in the current case, sent many messages on Facebook to a Denver-based singer/musician Coles Whalen apparently in a consistent stalking style.

Whalen got scared and started feeling unsafe, ultimately reporting  Counterman to the authorities.

Counterman was arrested in May 2016, charged under the state’s stalking law, and convicted by a jury. He was sentenced to four-and-a-half years in prison. Counterman has since appealed his conviction quite a few times, maintaining that it conflicts with his free speech (First Amendment) rights.

The core of the case pivots on the issue of whether his intent was threatening while he sent those messages on Facebook. Colorado Politics cited public defender Mackenzie Shields arguing on behalf of Counterman in the appeal hearing:

“Mr. Counterman did not intend to make a threat or didn’t have knowledge that the communication would be perceived as a threat.”

Shields argued that messages were “overwhelmingly mild.”

The case now waits to be heard by the SCOTUS, with the language of the messages potentially applicable to jokes and figurative speech taking center stage in the debate. The concern that a message can be taken out of context and the person sending it can be prosecuted over potentially dangerous intent has put Counterman’s case a potential landmark for legal analysts.

Foundation for Individual Rights and Expression Attorney Gabe Walters was cited in The Western Journal (April 8) commenting on the First Amendment aspect of the case. He said that free speech principles require that “the speaker actually intend to cause a person or group of people fear of harm” to earn punishment.

Travis Barham, senior counsel at the Alliance Defending Freedom (ADF), commented that the court might open the door to restricting speech based on its effect on the recipient.

“Attempting to prosecute speech is a slippery slope, and courts should make clear that the state cannot criminalize speech without first considering the speaker’s intent.”

Barham advocates broad protections for free speech instead of boarding the bandwagon marked “speech is violence.”
Some professors specializing in First Amendment have emphasized that Counterman v. Colorado is specifically a case of stalking, i.e., behavior, not of threatening speech, which is why Counterman was initially charged and convicted under Colorado’s stalking laws.

But Jeremey Connell of the University of Miami Law Review believes that the SCOTUS ruling on the case may settle the long-debated question: What is necessary for speech to constitute a “true threat”?