{"id":34560,"date":"2023-04-19T12:19:46","date_gmt":"2023-04-19T18:19:46","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/colorado-going-before-the-u-s-supreme-court-will-test-states-stalking-laws\/"},"modified":"2023-04-19T18:19:46","modified_gmt":"2023-04-19T18:19:46","slug":"colorado-going-before-the-u-s-supreme-court-will-test-states-stalking-laws","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/colorado-going-before-the-u-s-supreme-court-will-test-states-stalking-laws\/","title":{"rendered":"Colorado going before the U.S. Supreme Court will test state\u2019s stalking laws"},"content":{"rendered":"\n

\"The
The U.S. Supreme Court, as seen between gaps of a metal security fencing on June 5, 2022, in Washington. (Manuel Balce Ceneta\/Associated Press file)<\/span><\/figcaption><\/figure>\n<\/p>

The Facebook messages from the convicted stalker to the musician ranged from offers to bring over garden tomatoes to chats about her former automobiles to menacing rants expressing frustration and telling her to \u201cdie.\u201d<\/p>\n

For two years, a Colorado-based singer-songwriter received more than 1,000 messages over social media from a Denver man who had seen her perform at a handful of local venues. She actually believes it was more because she blocked him so many times that no one can really capture how many messages he may have tried to send.<\/p>\n

The singer-songwriter, identified in court documents as C.W., felt his persistence, and the content and frequency of his messages was creepy and invasive.<\/p>\n

Even after repeatedly blocking the man, he would create another profile and keep sending her messages.<\/p>\n

She never recalled responding to any of them. She discovered the man was on federal probation on another case and grew fearful of her own safety. She canceled two concert performances and declined to perform in a dozen others, which she said caused her a loss of $1,500 per show. She told police she was drinking more alcohol and she started to do marijuana to ease stress. She stopped going out at night alone.<\/p>\n

Arrested for stalking<\/div>\n

After two years, she went to the police and Denver officers arrested Billy Raymond Counterman, now 61, for harassment and stalking.<\/p>\n

Counterman told police, according to court documents, he thought she was responding to him, though couldn\u2019t tell officers how or show them proof that was true. He also said he talked to her at one of her performances, though she didn\u2019t recall that. His lawyers say there were some mental health problems.<\/p>\n

Counterman was eventually charged in Arapahoe County court with stalking. During the trial, his public defenders filed a motion to dismiss saying his Facebook messages were protected under both the First Amendment and the Colorado Constitution. Their argument was they weren\u2019t \u201ctrue threats,\u201d and they should be protected from criminal prosecution.<\/p>\n

A state judge denied that motion, and Counterman was convicted. He served two and a half years in prison and another year on parole.<\/p>\n

Meanwhile, C.W., the singer-songwriter, has moved and now lives in an undisclosed location. Her lawyer says she is still fearful and has, by and large, given up her music career in big concert venues because she remains afraid.<\/p>\n

\u201cShe wanted to be a performing musician, she loved being in front of crowds, plying her craft and that suddenly became too dangerous for her to pursue,\u201d said Paul Cassell, a criminal law professor at the University of Utah. Cassell is representing C.W. in this case. \u201cShe never knew when sitting in the front row would be a deranged individual sending threatening messages to her.\u201d<\/p>\n

Free speech and a test of state law<\/div>\n

These are the basic facts of a 7-year-old stalking case that received quite literally no attention at the time and now has wound its way to the U.S. Supreme Court as the latest free speech battle that tests Colorado\u2019s stalking laws. Oral arguments will be heard in April.<\/p>\n

At issue is what is a \u201ctrue threat\u201d and whether Colorado\u2019s law \u2013 which currently allows for imprisoning someone for writing threatening messages that are perceived as frightening or intimidating by a victim \u2013 violates the First Amendment.<\/p>\n

\u201cI think this really highlights the kind of errors that can happen here,\u201d said John Elwood, a Washington, D.C., based attorney who will be arguing the case on behalf of Counterman in front of the high court. \u201cThere is a fair amount of consensus that Mr. Counterman had mental health issues. \u2026 The words coming out of someone\u2019s mouth, he really did not understand them to be a threat. Here there is a real reason to believe he didn\u2019t understand it in those terms.\u201d<\/p>\n

The state of Colorado disagrees.<\/p>\n

\u201cHere, the facts are really compelling,\u201d said state Attorney General Phil Weiser, whose team will defend the state\u2019s stalking law. \u201cThis is not a new issue in the sense that we\u2019ve had this, in person, over the phone, over letters. And it\u2019s now happening on social media. What\u2019s different is that it\u2019s easier to threaten on social media, and our position is: The nature of the threat doesn\u2019t have to be different. If someone said all this in-person, \u2018I\u2019m watching you. I saw you the other night. I\u2019m going to keep watching you and I want you to die.\u2019 That\u2019s functionally the same as saying it over Facebook.\u201d<\/p>\n

\u2018This area of law is currently a mess\u2019<\/div>\n

True threats are a category of speech that is not protected by the First Amendment, similar to obscenity or child pornography. There are currently varying standards in state and higher courts on whether the person issuing statements actually meant to threaten someone or whether it was simply perceived as threatening, which lawyers call objective or subjective intent.<\/p>\n

In Colorado, it doesn\u2019t necessarily matter whether the person delivering the speech intended for it to be threatening, but if law enforcement deems it to be \u201cobjectively\u201d threatening plus the victim feels threatened, that is sufficient enough for prosecution in the state\u2019s criminal justice system.<\/p>\n

\u201cThe Supreme Court has to pick cases, they have to adopt a standard that works for all kinds of speech,\u201d Elwood said. \u201cIt involves political speech and all kinds of speech online.\u201d<\/p>\n

Free speech advocates say the national standard should be less than that Colorado prosecutorial standard. That is, they think it needs to be proven that a person objectively knew they were making threats and the victim also suffered from those threats.<\/p>\n

\u201cThis area of law is currently a mess. Dozens of different federal courts and state courts apply at least three different versions of this,\u201d said Jay Schweikert, a research fellow at the Cato Institute. Schweikert plans to write an amicus brief on behalf of Counterman. \u201cWe believe that for something to count as a true threat that it has to be intended as a threat and received as a threat.\u201d<\/p>\n

Second free speech case from Colorado<\/div>\n

This is the second first amendment case to be argued in front of the nation\u2019s highest court this year.<\/p>\n

In December, justices weighed whether a Colorado-based website designer can refuse to create wedding websites for gay couples under the state\u2019s public accommodations law. The designer argues being forced to accommodate gay couples violates her free speech rights to create the products that she wants to.<\/p>\n

The stalking case puts Weiser in the same camp as law enforcement and pro-victim\u2019s rights advocates, both of whom say making it easier for people to make all manner of threats \u2013 online or in person \u2013 would impinge on public safety.<\/p>\n

Weiser said he has deep concerns given Colorado\u2019s domestic violence numbers are so high right now.<\/p>\n

\u201cWe\u2019re at a time of increasing, threatening discourse and violence in ways that leave people feeling less safe,\u201d Weiser said. \u201cAnd the importance of allowing prosecutions like this case against C.W. is that it\u2019s protecting people before the harm to them gets even worse.\u201d<\/p>\n

This isn\u2019t the first time the high court has taken up a \u201ctrue threat\u201d free speech case. Stretching as far back as Alexander Hamilton, the courts have woven through state and federal case law through the years and made various rulings that have never completely settled the question. That is, trying to define what type of speech or \u201cfighting words\u201d are protected by the First Amendment and what isn\u2019t protected. That includes the various weights the court gives in that standard to the speaker\u2019s \u201cintent\u201d versus the way the victim perceived that speech.<\/p>\n

For example, in 2003, the Supreme Court upheld a state statute making it illegal to burn a cross in public or intimidate others, ruling that cross burning was a true threat intending to cause intimidation.<\/p>\n

Troublesome precedent?<\/div>\n

Libertarians and free speech advocates who will argue this case on Counterman\u2019s side say the case has the potential to create a troublesome precedent to crack down on free speech \u2013 particularly against the government.<\/p>\n

\u201cIt\u2019s everything George Orwell talked about in his novels,\u201d said John Whitehead, a constitutional lawyer and scholar at the Rutherford Institute, a Virginia-based constitutional advocacy group. \u201cI don\u2019t want to see someone go to jail for four years, like in the Counterman case, for whatever he was saying. I think the Supreme Court needs to set a really good standard, to what is actually a true threat in a case like this.\u201d<\/p>\n

Both Whitehead and Schweikert, at Cato, make a distinction about online speech versus physical stalking \u2013 particularly since online speech, in and of itself, is so much more easily communicated.<\/p>\n

They also argue that in cases like C.W.\u2019s, a restraining order could have sufficed to keep her safe \u2013 rather than Counterman\u2019s prison time.<\/p>\n

\u201cPeople make a lot of hyperbolic criticisms of government online,\u201d Schweikert said. \u201cImagine any person you would least like to see as president, that you would be most critical of, imagine them getting to decide that this made me feel threatened and I get to decide to prosecute this person for making me feel threatened. That is what is at stake here.\u201d<\/p>\n

But lawyers arguing on behalf of the victim, in this case, call all of that hyperbole.<\/p>\n

\u201cTo those who say this is going to be terrible for political speech, make them show a concrete example, they can\u2019t,\u201d Cassell said. \u201cWhat\u2019s a little frustrating to me is people saying, \u2018Wow, there is going to be a big change! Really? Well there are millions of people living in Colorado \u2026 they don\u2019t seem to have a problem criticizing their politicians, why is there all of the sudden going to be a squelching of free speech?\u2019\u201d<\/p>\n

What about protecting victims?<\/div>\n

Cassell said if the Supreme Court overturns Colorado\u2019s law, victims won\u2019t have as much protection. He said the problem with a legal standard that looks at whether the speaker \u201cintended\u201d to intimidate is that it lets off deranged, or otherwise dangerous, people from criminal prosecution, who later say they didn\u2019t mean anything by the threats.<\/p>\n

\u201cI think it\u2019s important that the law give primacy here to protecting victims rather than plumbing the depths of a defendant\u2019s mind to explore what he may be thinking,\u201d Cassell said.<\/p>\n

The messages C.W. received from Counterman touched on surveillance, anger, escalation and indifference to her well-being and life.<\/p>\n

One message said, \u201cWas that you in the white Jeep?\u201d and \u201conly a couple of physical sightings\u201d and \u201ca fine display with your partner\u201d and \u201ctell your friend to get lost\u201d and \u201cyou\u2019re not being good for human relations. Die. Don\u2019t need you.\u201d<\/p>\n

In a statement, C.W. said, she was grateful law enforcement took the threats seriously.<\/p>\n

\u201cAs the Supreme Court weighs this issue, I hope it will consider how dangerous stalking is for victims and their families all over this country. The threat was very real and caused me significant and enduring harm,\u201d she said. \u201cI am grateful that when I reported these alarming messages, they were taken seriously, and many folks in law enforcement and the criminal justice system did everything they could to protect me. If you are afraid \u2013 please \u2013 trust yourself, and reach out for help.\u201d<\/p>\n

Her lawyer said if the criminal justice system is supposed to ignore speech like this, then that, too, sets a dangerous precedent.<\/p>\n

\u201cDo we want to live in a society where women singers like C.W. can be threatened by people like Counterman and there is no way for the criminal justice system to stop that?\u201d Cassell said. \u201cIt forced C.W. to give up her dream and for what benefit on the other side? I don\u2019t see any social benefit to someone like Counterman being able to send thousands of unwanted communications that a reasonable person would determine as threats.\u201d<\/p>\n

Schweikert said he\u2019s not arguing about the value of Counterman\u2019s speech \u2013 but the overarching point that people should be able to express themselves online when they are not intending harm.<\/p>\n

\u201cNo one is going to look at these messages and say \u2018wow, this is super valuable speech,\u2019\u201d he said. \u201cAt best, they were creepy messages. No one is disputing that. But the kind of pure doctrinal question is that this is a major First Amendment law and if it goes the wrong way, it could seriously imperil a huge swath of political speech.\u201d<\/p>\n

To read more stories from Colorado Public Radio, visit www.cpr.org<\/em><\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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