The Supreme Court profoundly misunderstood and misapplied free speech protections in its decision on Counterman v. Colorado, and it has made life more unsafe for victims of stalking everywhere. I know because I am one of them.
Billy Raymond Counterman was convicted in a Colorado court of stalking a musician, Coles Whalen, after sending hundreds of messages to her on social media over a two-year period. Whalen never responded and repeatedly blocked Counterman, but he created new accounts and continued to send the messages. Some of these messages suggested that Counterman was spying on Whalen, with references to her car among other personal details, while others expressed anger, including:
“Staying in cyber life is going to kill you.”
“You’re not being good for human relations. Die.”
Whalen was so unnerved by these messages that she hired extra security and canceled performances. Counterman asserted his First Amendment right to free speech, but he was convicted of stalking and sentenced to four and a half years in prison.
The Supreme Court’s decision on June 27 vacated the Colorado Court of Appeals judgment and remanded the case back to the court, requiring the state to show Counterman was aware the statements could be construed as a threat.
Essentially, the Supreme Court redefined the standard for what constitutes a true threat. According to federal statistics, an estimated 13.5 million people a year are stalked.
I am one of those few victims to win a successful conviction against a stalker. The legal threshold is set alarmingly high for a victim to prove communication from an individual causing a reasonable person to feel fear. This Supreme Court decision increases the burden of proof on the victim.
In my case, the stalker did not limit his actions to offensive, disturbing messages. He appeared in my back yard at night. He followed me whenever I left my house. Because the police would not help, I hired a private investigator to document the stalker’s behavior. Once I presented police with video and photographic proof along with the messages, they filed charges against him.
Not only has the Supreme Court raised the legal threshold for victims of stalking, it has opened the door for stalkers to have their convictions overturned. How is this justice?
The First Amendment says that Congress shall make no law abridging the freedom of speech, but it does not offer protection for individuals whose speech infringes on the rights of others. Whalen successfully demonstrated that Counterman’s messages would cause a reasonable person to feel fear. This new demand that Whalen also prove Counterman sent the messages knowing they would be perceived as threatening is the very reason victims do not go to the police in the first place.
Why are we more concerned with protecting the rights of the accused than of the victims? While the Sixth Amendment provides inalienable rights to the accused, the Constitution is silent on the rights of victims. Although each state has adopted a Victims’ Bill of Rights, in my case, these protections were overlooked or ignored completely.
I appreciate Justice Amy Coney Barrett’s dissent, noting that “nothing in the Constitution compels that result.” Both Whalen and I were forced to upend our lives when we were stalked. Being the target of a stalker is unbearable. The lines between vigilance and paranoia are blurred as the emotional toll sends the victim spiraling into an abyss. How can the person responsible for this be protected by the First Amendment?
The First Amendment offers vital protections to all of us, giving us the power of speech to leverage checks and balances on the government. But this should not be confused with a stalker’s use of speech to harass and threaten another person.
I sympathize with Whalen, who must return to court, once again, and relive the emotional brutality of her experience. My hope is that Counterman will be found guilty, again, under the new standard set by the Supreme Court.
Kathryn Caraway lived life as the target of a stalker for more than four years. After her perpetrator’s conviction, Kathryn founded the Unfollow Me Project to raise awareness of the debilitating effects of stalking. For more information, go to https://unfollowme.com.
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