WASHINGTON — The Supreme Court on Friday agreed to decide what kind of conduct constitutes a “true threat” that can be prosecuted as a criminal offense in a case brought by a Colorado man who repeatedly sent abusive messages to a local musician.
The appeal brought by Billy Counterman says his conviction for sending Facebook messages to singer-songwriter Coles Whalen is invalid because the jury was not required to make any finding about whether he intended his comments to be genuine threats.
If such messages are not true threats, they are deemed protected speech under the Constitution's First Amendment.
Counterman's lawyers are asking the court to limit the definition of a true threat to situations in which the defendant intended to threaten the person. Some lower courts have reached that conclusion, while others have said prosecutors only have to show that a “reasonable person” would consider the message to be a threat.
The case is a sequel to a 2015 ruling in which the court threw out the conviction of a Pennsylvania man who made threatening remarks on Facebook aimed at his ex-wife. That case was decided on relatively narrow grounds and did not reach the broader constitutional question raised by Counterman.
In Counterman’s case, prosecutors focused on messages he sent to Whalen on Facebook for two years starting in 2014. Examples included, “I’ve had tapped phone lines before, what do you fear?” and, “You’re not being good for human relationships. Die. Don’t need you.”
Whalen, who has said the messages were “weird” and creepy,” did not respond to any of them and ultimately reported them to the police in 2016, according to court documents. Counterman was convicted of one count of stalking and was sentenced to four-and-a-half years in prison. The conviction was upheld on appeal, prompting him to ask the Supreme Court to intervene.
Lawyers for the state said in court papers that Counterman’s conviction did not rest purely on the messages, but also on what they characterize as his admission that he had carried out surveillance of Whalen. In one message, he referred to a white Jeep she drove, and in another, he said he had seen her out with her partner. Counterman's lawyers say the state has no evidence aside from the messages to suggest that he spied on Whalen.
