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Prosecution of musician’s stalker puts standard on threats in high court’s crosshairs

It's undisputed that his years of sending threatening messages to a woman caused harm. Billy Counterman says the state erred, however, by not considering his intent.

WASHINGTON (CN) — Facebook messages that caused a Colorado musician to fear for her life were met with mixed reviews Wednesday at the Supreme Court. 

“‘Staying in cyber life is going to kill you,’” Chief Justice John Roberts said, quoting messages that brought Billy Counterman a prison sentence of over four years.

“I can't promise I haven't said that," Roberts remarked. Later, the chief justice asked: "In what way is that threatening?"

Counterman was convicted on stalking charges in after spending years sending hundreds of messages to a singer-songwriter — identified as C.W. in court documents — who never reciprocated his interest. Some of Counterman's messages inquired about her location: “Five years on Facebook. Only a couple of physical sightings.” Others went further, telling her to “fuck off permanently” and “die.” 

C.W. said the messages caused her severe emotional distress and damaged her career when she had to avoid public events and cancel shows. 

While the messages appeared to leave Roberts somewhat nonplussed, some of his fellow justices found cause for alarm. 

“I want to take it as a given that this is a high standard and two and a half years of sending somebody unwanted emails when that person has consistently tried to block them and tried to stop them, some of those emails being pretty violent … I want to take it as a given that this can be objectively terrifying,” Justice Elena Kagan said. 

The court is considering whether Counterman’s intent alters his culpability. Counterman enjoys the right to free speech under the First Amendment, but that right has exceptions. The exception in this case is known as true threats and his appeal asks for a higher standard when threatening speech is prosecuted. 

The majority of the justices appeared to accept Counterman’s arguments that intent is an important factor in determining if speech presented a true threat. 

“It’s inevitable that the speaker’s intent is going to be important,” Justice Samuel Alito said. 

Using the current standard, threats are considered by how a reasonable person may perceive them. Justice Neil Gorsuch expressed concern, however, that the standard may now be unworkable because of “increasing sensitivity” in modern society. 

“We live in a world in which people are sensitive — and maybe increasingly sensitive,” the Trump appointee said. “As a professor, you might have issued a trigger warning from time to time when you had to discuss a bit of history that's difficult or a case that's difficult. What do we do in a world in which reasonable people may deem things harmful, hurtful, or threatening and we're going to hold people liable willy-nilly for that?” 

Expressing similar concern, Justice Amy Coney Barrett asked a hypothetical about whether students who were viewing a lesson on lynching in the Jim Crow South could possibly feel threatened by the teacher’s language if they were speaking in first person. 

Justice Clarence Thomas expressed a similar view. 

“We're more hypersensitive about different things now, and people could feel threatened in different ways,” the Bush appointee said. 

Counterman's attorney made a similar point at oral arguments, echoing the argument from his high court petition

“Criminalizing misunderstanding is especially dangerous in an age when so much communication occurs on social media, which brings together strangers in an environment that removes much of the context that gives words meaning,” said John Elwood with the firm Arnold & Porter. “And it chills expression by imposing prison time on speakers who do not tailor their views to suit their audience.” 

The state that prosecuted Counterman told the justices meanwhile to reject the challenge. 

“True threats have always been prosecuted without protection by the First Amendment,” Colorado Attorney General Philip Weiser said. “Petitioner now seeks to impose a specific intent element onto this inquiry that's required neither by history nor precedent.” 

He warned that a heightened standard for establishing true threats could cause significant harm. 

“Requiring specific intent in cases of threatening stalkers would immunize stalkers who are untethered from reality,” the state attorney general pressed. “It would also allow devious stalkers to escape accountability by insisting that they meant nothing by their harmful statements. This matters because threats made by stalkers terrorize victims and for good reason. Ninety percent of actual or attempted domestic violence murder cases begin with stalking.” 

Asked to weigh in on behalf of the federal government, U.S. Deputy Solicitor General Eric Feigin warned the justices to exercise caution. 

“We're basically just having a policy debate about how much breathing room is necessary,” Feigin said. “And I would urge this Court to allow legislatures — many of which do adopt heightened mens rea requirements because of precisely the concerns that have been articulated — to have that shake out on their own because there are a number of interests on the other side.” 

Follow @KelseyReichmann
Categories / Appeals, Civil Rights, Criminal

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