COLORADO SPRINGS — Today, the U.S. Supreme Court ruled in favor of a Colorado man who argued his conviction in a stalking case violated his first amendment rights. Local experts including a former district attorney and lawyer weighed in on the SCOTUS ruling.
It stems from hundreds of FaceBook messages that the defendant Billy Raymond Counterman began sending to Coles Whalen, a Colorado musician, in 2014. The court said his messages put her in fear to the point she stopped walking alone and canceled performances.
According to court documents, some of the messages read:
- “I’ve had tapped phone lines before, what do you fear?”
- “Was that you in the white jeep?”
- “You’re not being good for human relations. Die. Don’t need you.”
Prosecutors say she tried to block him, but Counterman kept creating new accounts and sending messages.
“It is very threatening and very frightening. It terrorized this woman to where she was changing things she was doing in their life,” said Dan May.
May is a former 4th Judicial District Attorney who weighed in on the ruling, saying harassment can be hard to prove and sometimes the courts struggle with first amendment protection or crossing the line of criminally charging someone.
“The harassment area is one that's very difficult to define what is criminal and what crosses over into the first amendment rights,” said May. “It's clear that if I come out and I say, ‘I’m going to kill you’, that that crosses the line into the criminal, and we can charge that. In this case, where he keeps changing FaceBooks, she keeps trying to block him, and it becomes very frightening. But people walk that line and they don't quite come out and say, ‘I’m going to kill you.’”
Counterman was sentenced to four and a half years in prison for stalking, but were his messages true threats or freedom of speech?
Counterman argued his messages to Whalen were not "true threats" and he could not be criminally charged. Justices with the U.S. Supreme Court say prosecutors have to show the person not only made threatening statements but that the person knew the statements were threatening.
Stephen Longo, a personal injury lawyer in Colorado Springs explained it to News5, adding it’s interesting what the Supreme Court decided.
“They’re taking an objective standard what a reasonable person would think is a true threat, and making it a subjective standard that's based on the person making the statements and having an understanding that they are actually being done in a threatening manner,” said Longo. “So I think that does create a little bit of a slippery slope and I think a dangerous line that some folks are concerned about, that we're taking a standard and making it really about the person who's making the statements rather than the victim.”
Longo believes a new standard has been set in looking at protected or unprotected free speech, and that standard is going to take into account the subjective account of the person making the threats. He added, if this case goes to trial again in the lower courts, then he believes there is enough evidence to support that the defendant knew what he was doing was threatening.
In a statement provided to News5, John Elwood, Counterman's lawyer before the U.S. Supreme Court he said: “We’re gratified that the Supreme Court agreed with Billy Counterman that the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening. Free speech is too important to imprison people for statements that are at most negligent.”
Darryl Glen, the chief legal officer of TESSA said: “We are concerned about the potential negative impact of today’s Supreme Court ruling. We are consistently seeing an increase in clients reporting threats of violence. Our primary worries are whether this will negatively impact law enforcement’s ability to address these threats or whether clients will no longer feel they will be properly addressed in the legal system.”
In a statement, Colorado’s Attorney General Called the ruling, “a loop hole for delusional and devious stalkers".
May also said while this case went through the Colorado court system, the court records indicated that the conviction was constitutional, however, the U.S. Supreme Court believed otherwise. May added, that can also be somewhat frustrating for law enforcement, prosecutors and state legislatures who want to protect victims.
The case now returns to lower courts for further proceedings on whether the conviction should be thrown out.
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