The online stalking free speech question

One of the cases the Supreme Court handed down this week is likely to produce unpredictable results in terms of both digital privacy and free speech. It involves the conviction and imprisonment of a Colorado man named Billy Raymond Counterman. Back in 2010, Counterman was a big fan of an up-and-coming singer named Coles Whalen. And we mean a really big fan. He reached out on Facebook and began sending her messages. When she failed to respond, the messages became more frequent and less adoring. She described them as being threatening and disturbing. Whalen complained to law enforcement and in 2016, Counterman was arrested, convicted, and spent four and a half years in jail. His appeal finally reached the Supreme Court and on Tuesday they ruled in Counterman’s favor, vacating his record. So was this a victory for free speech or an invitation to online stalkers to behave badly? (ABC News)

The Supreme Court on Tuesday overturned the conviction of an online stalker from Colorado, tightening the standard by which threats made on social media can be punished as crimes.

Justice Elena Kagan, writing for a 7-2 majority, said the “the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements.”

In 2016, Colorado prosecuted the plaintiff, Billy Raymond Counterman, winning a state court conviction by showing that hundreds of Facebook messages Counterman sent to a female singer-songwriter were objectively threatening and received that way by the victim.

I’m not a celebrity and I’ve never had an online stalker, so I really don’t have any firsthand experience with what Coles Whalen was going through. But I do lean slightly more toward the free speech side of the questions surrounding this case. Making threats of physical violence should not be tolerated and it is rightly prosecutable as a crime. But the courts are forced to wrestle with the question of when “online contact” crosses over into the territory of “true threats” that can make the recipient legitimately fearful for their safety.

In Counterman’s case, law enforcement found itself in what appears to be a gray area. A previous ABC article provides examples of what are claimed to be some of the worst messages that he sent to the singer. You can judge for yourself, but this seems like a borderline situation. I would certainly agree that some of them can readily be described as disturbing, but are they true threats?

He wrote, “I’m going to the store would you like anything?” In another message, he described himself as “currently unsupervised,” adding that “the possibilities are endless.” In perhaps his most angry and potentially threatening messages, he said, “You’re not being good for human relations. Die. Don’t need you.”

That last one might be the message that wound up landing him in jail. But while it’s certainly unpleasant, there’s a difference between telling someone to “die” and saying “I’m going to come to your home and kill you.” What Counterman wrote was more like urging someone to commit suicide. It’s nasty, but is it a criminal threat? The Supreme Court didn’t think so.

The court overturned the conviction in a “bipartisan” fashion on a 7-2 vote. Only Amy Coney Barrett and Clarence Thomas dissented. But there is one question that never seems to have been addressed in this entire proceeding. To the best of anyone’s knowledge, Billy Counterman never traveled to physically come in contact with Whalen, nor did he even try to call her on the phone. Everything happened through Facebook. Users are able to block anyone they like when using the platform. Over the course of six years, did it never occur to Whalen that she could stop seeing Counterman’s messages with a few clicks of her mouse?