When do online threats become a crime? Supreme Court hears case

WASHINGTON (Gray DC) - How bad does an online threat need to be before you can be charged with a crime? A convicted stalker in Colorado says his online posts should be protected by the first amendment.

Attorney Paul Cassell said Coles Whalen was a rising local artist in Colorado, but her career was cut short after Billy Raymond Counterman sent hundreds of un-responded-to messages. Several messages conveyed to Whalen that she was under surveillance, like “Was that you in the White Jeep?” Counterman asking Whalen to tell her friend to “get lost,” and “A fine display with your partner.”

“Essentially Coles had to give up her career as a stage performer because she didn’t know where the bad guy was, whether he would be out there in the audience, whether he’d be coming to attack her,” Cassell said.

Despite being blocked on social media several times, Counterman made new profiles and sent messages such as “Die. Don’t need you.” Counterman was ultimately convicted of stalking and given a four-and-a-half year sentence.

“The hundreds of communications that were sent to Coles Whalen would have been construed by a reasonable person to be threatening,” Cassell said. “There were references to her dying and things like that.”

Colorado law dictates threat speech is tested “objectively,” basically meaning a reasonable person would consider it threatening. Attorneys supporting Counterman said his speech should be protected under the First Amendment because Counterman himself did not intend those posts to be threatening.

“Billy Ray Counterman is diagnosed with a mental illness, and believed that he was having a two-way conversation with the target of his communications, who was actually not responding to him at all,” Foundation for Individual Rights and Expression (FIRE) attorney Gabe Walters said.

Some free speech advocates said it is dangerous to allow the government do decide what constitutes a threat.

“The right to speak is going to go out the window,” constitutional law attorney John Whitehead said. “We’re moving into an Orwellian type state where the thought police are going to control.”

The Supreme Court is scheduled to hear arguments from both sides Wednesday morning.

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