Release Date: April 17, 2023
Contact:  Michael Rushford
(916) 446-0345

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Oral argument in Counterman v. Colorado set for April 19

The U. S. Supreme Court will hear oral argument on Wednesday in its review of a Colorado man's conviction for stalking a young woman over social media for two years. The question before the Court in Counterman v. Colorado is whether the stalker's uninvited and unwanted communication with the victim, which frightened her, is punishable as a crime, even though the stalker claims he did not intend to frighten her.

The California-based Criminal Justice Legal Foundation (CJLF) has joined the case to encourage a decision upholding the stalker's conviction.

The case involves a 2014 Facebook friend request from Billy Raymond Counterman to a singer-songwriter in Colorado identified as C.W. She and Counterman had never met or communicated before, but as an aspiring musician trying to grow her following, she accepted his friend request. Over the next two years, Counterman sent her scores of private messages she thought were "weird" and "creepy." She never responded and blocked him from her account multiple times, but Counterman created new Facebook accounts and continued to send her messages. Some of the messages indicated that Counterman was watching C.W. "Was that you in the white Jeep," read one. "A fine display with your partner," read another.

As time passed, Counterman's messages became more angry and threatening,"Die. Don't need you," and "F**k off permanently." C.W. became quite fearful, believing that Counterman might hurt her. She even cancelled scheduled concerts fearing that he might confront her. After she learned that Counterman was on probation for two prior threat convictions, she called the police. On May 12, 2016, Counterman was arrested and charged with stalking and harassment. Although he argued that his messages were not true threats, the jury convicted him of stalking (serious emotional distress) and he was sentenced to 4½ years in prison.

On appeal, Counterman argued that the Colorado law unconstitutionally violated his First Amendment rights, because he did not intend to frighten her, and that his messages to C.W. were protected speech. The Court of Appeals rejected that claim and upheld his conviction. The Colorado Supreme Court declined to review his appeal. Last January, the U. S. Supreme Court agreed to hear the case.

In a scholarly amicus curiae (friend of the court) brief, CJLF Associate Attorney Kymberlee Stapleton argues that Colorado law does not require subjective intent because stalkers are often mentally unstable. A person detached from reality may not be aware that their behavior is threatening. After multiple attempts by C.W. to block his messages, Counterman posted, "How can I take your interest in me seriously if you keep going back to my rejected existence."

Targeted victims of stalkers often move or quit jobs, alter their routines, and change their appearance in an attempt to avoid contact. The circumstances of this case, where the stalker is repeatedly sending unwanted messages to a victim who is unable to avoid them, further comports with the Supreme Court's frequent holdings that the time, place, and manner of communication can be restricted. If a reasonable person feels threatened by repeated unwanted and unavoidable communications from a stranger and the victim is in fact fearful, then the stalker should be punishable under law.

"The use of social media to stalk and harass vulnerable victims is a serious offense that can cause extreme anxiety and emotional distress. Laws enacted to protect the public from this type of crime have become increasingly important as millions of people, including children, have adopted social media as their primary mode of communication," said Stapleton. "We are hoping that the Supreme Court recognizes the scope of this problem and upholds reasonable laws to address it," she added.

CJLF Associate Attorney Kymberlee Stapleton is available for comment at (916) 446-0345