Supreme Court makes it harder to prosecute online stalkers

WASHINGTON —  The Supreme Court on Tuesday made it somewhat harder to prosecute online stalkers, ruling the 1st Amendment protects the free speech of those who repeatedly send unwanted and harassing messages if they lack the understanding that their words are seen as threatening.

In a 7-2 decision, the court set aside the stalking conviction of Billy Counterman, a Colorado man who sent hundreds of disturbing and alarming messages to Coles Whalen, a singer and songwriter.

In upholding the conviction, lower court judges had said a reasonable person would understand his messages would be seen as threats.

But the Supreme Court said the 1st Amendment requires more. It “requires some proof that the defendant had some subjective understanding of the threatening nature of his statements,” said Justice Elena Kagan, writing for the court in Counterman vs. Colorado.

She said prosecutors must prove that a defendant knew he was acting recklessly in sending messages that could be seen as threatening. She described the court’s position as a middle ground because it does not require proof that the defendant intended to threaten the target of his messages.

“The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The state need not prove any more demanding form of subjective intent to threaten another,” Kagan wrote.

Justices Amy Coney Barrett and Clarence Thomas dissented and said they would have upheld the conviction.

Barrett said the ruling could be used to protect a “delusional speaker” who does not understand the threatening nature of his words as well as “a devious speaker” who claims to be unaware.

“The bottom line is this: Counterman communicated true threats. He knew what the words meant. Those threats caused the victim to fear for her life, and they upended her daily existence. ...Nothing in the Constitution compels that result.”

The American Civil Liberties Union said it approved of the decision.

“We’re glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized,” said Brian Hauss, senior staff attorney with the ACLU’s Speech, Privacy, & Technology Project. “In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received. The 1st Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

Whalen said she tried repeatedly to block the messages, which suggested she was being watched and followed. Increasingly frightened, she quit performing in public.

Counterman had been convicted earlier of sending violent and threatening messages to family members and others. He was charged with stalking in Colorado for sending unwanted messages to Whalen that a reasonable person would view as threatening.

He was convicted by jury and sentenced to four and half years in prison.

While Counterman’s lawyers said the messages were not threats, Whalen disagreed.

“The thousands of unstable messages sent to me were life-threatening and life-altering,” she said in an internet posting on her case. “I was terrified that I was being followed and could be hurt at any moment; I had no choice but to step back from my dream, a music career that I had worked very hard to build.”

Some messages invited her to “come out for coffee.” Others referred to seeing her in public. A few sounded angry: “Die. Don’t need you.”

When she complained to police, it led to an investigation and prosecution. But the high court said the Colorado courts had erred in upholding the conviction. This could result in a new trial for the defendant.