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What Is A Threat? Justices Question CO Law Used To Convict Stalker

Of the thousand unwelcome comments a stalker sent to the object of his obsession, Chief Justice John Roberts opined Wednesday that the most threatening one was “You’re not being good for human relations. Die. Don’t need you.” Seeing it in the “cold print” of a Facebook message, how could the recipient know what that meant? Roberts wondered. “You can convey that message in a hostile way, or in a way that’s sort of like, you know, ‘you’re dead to me’ kind of thing,” Roberts said. So it went for nearly two hours as the Supreme Court picked at a Colorado law used to convict Billy Raymond Counterman of stalking and causing “emotional distress” for Coles Whalen, a singer-songwriter he had never met, reports the Washington Post. Counterman, who had previously been convicted of making threats to others, served four years in prison in the Whalen case.


Now the Supreme Court is using his prosecution again to confront the question of when statements, especially those made online, can be considered “true threats” not protected by the First Amendment. Counterman contends the state must show that the speaker intends the messages to be threatening. Colorado, backed by the Justice Department and a majority of states, says it should be enough that a “reasonable” recipient feel the threat of physical harm could be imminent, based on the context of the circumstances. Counterman’s lawyer at the Supreme Court, John Elwood, said that standard could lead to “criminalizing misunderstanding.” It would be “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,” Elwood said. “And it chills expression by imposing prison time on speakers who do not tailor their views to suit their audience.” Other justices besides Roberts, both conservative and liberal, seemed receptive to Elwood’s argument.

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