WASHINGTON — The Supreme Court on Wednesday wrestled with what prosecutors need to prove to convict someone of making a “true threat” 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.
Several justices seemed sympathetic to Counterman’s arguments, although it is unclear how exactly the court will rule.
Justice Clarence Thomas was one of several conservative justices who seemed to think that people are generally more sensitive than they were in the past, meaning that they are more likely to think that comments might be threatening even if the speaker did not intend them to be.
“We are more hypersensitive about different things now and people can feel threatened in different ways,” he said. As a result, perhaps the definition of “reasonable person” has changed, he added.
Fellow conservative Justice Neil Gorsuch questioned why Counterman’s intent would not be relevant context that could have been presented to the jury at trial.
“You emphasize that the context is really important here,” he told Colorado Attorney General Phil Weiser. “Why isn’t the defendant’s intention part of the context? How can it not be part of the context?”
Like Thomas, Gorsuch seemed concerned that changing attitudes in which people might feel threatened about discussions on such issues as American history and even past Supreme Court rulings could lead to an increase in prosecutions.
Other justices appeared more sympathetic to prosecutors, with liberal Justice Elena Kagan saying that from the perspective of a victim “this can be objectively terrifying.”
In a brief backing Colorado, 25 states urged the justices to give them leeway to prosecute without imposing an intent requirement, saying it can help curb threatening conduct before it leads to violence.
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.