Thirteen and a half million people are victims of stalking each year. According to the U.S. Department of Justice, more than a quarter have reported that they don’t know their stalkers “in any capacity.” Billy Raymond Counterman’s victim was no exception. 

After sending a Facebook friend request to the victim, a singer-songwriter, Counterman incessantly sent strings of threatening messages, totaling almost one thousand messages. Over the course of two years, the victim never responded and blocked Counterman four to eight times. In response, he created new accounts, continuing to text her, send her unwanted images, rate her attractiveness, and even comment on the victim’s mother: 

“You’re not good for human relations. Die. Don’t need you.”  

“Your arrogance offends anyone in my position.” 

“I’ve had tapped phone lines before. What do you fear?”

Fearing for her safety, particularly after Counterman referenced physically seeing her in-person, the victim canceled her public performances and engagements, always traveled in groups, and lived in constant fear of being harmed. She then contacted law enforcement and received a protection order, or an order that prohibits someone from coming near the person in question. 

Before the trial, the Colorado district court found that the statements Counterman made could be found to be true threats—an exception to the First Amendment’s protection of free speech. Counterman was then convicted of stalking causing serious emotional distress. He appealed the conviction, arguing that it violated his freedom of speech.  

Considering the “detailed context…  including the references to surveilling the victim,” along with the fact that Counterman’s direct messages to the victim alone, the Colorado Court of Appeals upheld the district court’s ruling, using a “context-driven objective test” that was recently set out by the Colorado Supreme Court. 

This test utilized a reasonable person standard, stating that “a true threat is a statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence.” 

In August 2022, a petition for the Supreme Court to review the case was filed. The petition was granted in January. 

The issue in front of the Supreme Court is whether or not it’s enough for an objective “reasonable person” to regard the statement as a threat, or if the government must also prove that the speaker subjectively intended the threat in order to establish that a statement is unprotected by the First Amendment. 

The issue has broad implications; as the ACLU pointed out in their amici curiae brief, “an objective ‘reasonable person’ test, standing alone, does not draw a sufficiently bright line, because many statements are capable of both innocuous and threatening meanings.” 

For example, if a protester exclaims, “Let’s burn his house down,” in reference to a public official’s home, the statement may simply be an idiomatic expression and political speech, or it may be a threat to commit arson. Criminalizing a threat without mens rea, or the intention or knowledge that one has committed a crime, may deter speech that is not actually threatening but contains objectively threatening words. 

The respondent’s brief argues that this specific case is not a good vehicle for addressing the subjective requirement of a true threat because Counterman admitted to physical surveillance of the victim, which could support his conviction of stalking without any First Amendment question. 

And despite the petitioner’s argument that Colorado’s law requires only analyzing how a reasonable person would perceive the statements in question, the Colorado standard requires the court to consider multiple factors, including the platform through which communication took place, the relationship between the speaker and recipient, the statement’s role in a broader context, and the manner in which the statement was conveyed.  

There is a split between the circuits as to what standard is required to prove a true threat, but nine out of the 11 circuits that have considered this issue ultimately settled upon applying an objective standard to find a true threat. 

Ultimately, the Supreme Court’s decision for this case will be integral in striking a balance between protecting freedom of speech and protecting victims of stalking and harassment, a crime that often goes unpunished.