A man convicted of stalking says his online messages were not threats. Now the Supreme Court will decide what a true online threat is

"F*** off permanently."

That incendiary statement was one of many that Billy Raymond Counterman sent to Colorado musician Coles Whalen through Facebook beginning in 2014.

For two years, Counterman, who suffers from mental illness, sent “creepy” and “weird” messages to Ms Whalen that implied he was watching her.

“Was that you in the white Jeep?"

"I’ve had tapped phone lines before. What do you fear?"

Ms Whalen blocked Counterman on multiple occasions but he would create new Facebook profiles and continue messaging her.

The messages, at times, could be perceived as confrontational.

"You’re not being good for human relations. Die. Don’t need you.”

Eventually, Ms Whalen told a family member she felt “fearful” and expressed worry of being physically hurt. She cancelled planned performances and says her mental health began to decline. She reported Counterman to law enforcement and obtained a protective order.

In 2016, Counterman was arrested and charged with one count of stalking (serious emotional distress), one count of stalking (credible threat), and one count of harassment.

Counterman was ultimately found guilty of stalking (serious emotional distress) and sentenced to four-and-a-half years in prison. But in the following years, he appealed, claiming his speech should have been protected by the First Amendment because it was not a “true threat”.

The question of what a true threat is, and who is responsible for determining it, is now the focus of a case before the Supreme Court – Counterman v Colorado – and it could change the way people communicate online.

The Supreme Court’s question

The question the justices are looking to answer is, “whether the government must show that the speaker subjectively knew or intended the threatening nature of the statement or whether it is enough to show that an objective ‘reasonable person’ would regard the statement as a threat of violence.”

During oral arguments on Wednesday 19 April, the justices heard from John Elwood, Counterman’s attorney, Colorado Attorney General Philip Weiser, and US Deputy Solicitor General Eric Feign.

Several justices, including Clarence Thomas, expressed skepticism that in ruling in favour of Counterman could affect other First Amendment exceptions like fighting words and obscenities by setting a precedent for intent.

Mr Elwood cited other cases where obscenity was debated, saying it was “entirely consistent” with the idea that there is a “subjective requirement.”

However, the justices also expressed apprehension in agreeing with Colorado as it could create a chilling effect toward online speech.

Justice Samuel Alito used an example of how people might interpret a person’s murder story online. One person may find it threatening, while another may not. Regardless, if the message is threatening toward a “reasonable person”, people could be wrongly accused of issuing a threat.

Mr Weiser laid out his argument by using statistics that showed most violent murders begin with stalking.

“Regardless of what the perpetrator was thinking, requiring specific intent in cases of threatening stalkers would immunize stalkers who are untethered from reality,” Mr Weiser said.

During Mr Weiser’s arguments, justices giggled when Chief Justice John Roberts questioned how some of Counterman’s messages were considered threatening.

But Mr Weiser did not laugh. Instead, he reiterated how the context surrounding the individual message contributed to stalking behavior which “90 per cent of actual or attempted domestic violent murder cases belong with stalking.”

The arguments

While Counterman’s messages were undoubtedly strange, he argues that he never intended to hurt Ms Whalen and never made explicit "statements of purpose or intent to cause injury or harm to the person, property, or rights of another, by an unlawful act.”

Over the two years that Counterman sent Ms Whalen messages, some were less coherent and confrontational than the previously mentioned ones.

"Your chase. Bet. You do not talk and you have my phone hacked.”

"Talking to others about me isn’t prolife sustaining for my benefit. Cut me a break already . . . . Are you a solution or a problem?"

One message included an image of liquor bottles and was captioned “[a] guy’s version of edible arrangements.”

Counterman argues that to determine if speech is a true threat there must be a subjective test that analyses the speaker’s intent. He suggests that objective tests, like the “reasonable person” standard used in Colorado court, risk criminalising “inevitable misunderstandings.”

This misunderstanding can be especially blurred online when “the evidence of criminal conduct consists of bare words on a screen.”

During oral arguments before the court on Wednesday, John Elwood, Counterman’s attorney, argued that since the Court has not ruled or regulated on holding someone criminally liable for speech they did not intend as a threat, they cannot do so now.

True threats

In the United States, most speech is protected by the First Amendment. But there are exceptions.

The Supreme Court found that true threats are one of those exceptions, in the 1961 case of Watts v United States.

A true threat, as defined by the landmark Supreme Court case Virginia v Black, is one “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or groups of individuals.”

Even if the speaker does not intend to carry out the actual threat, a statement that a “reasonable person” would consider physically threatening is still considered a true threat.

But in more recent years, the question of whether the “reasonable person” standard is enough to determine a true threat, especially as it pertains to online messaging and social media, is not something the Supreme Court has clearly defined.

But Counterman v Colorado is asking the justices to rule on just that.

What now?

After oral arguments, the Supreme Court will have to decide the fate of Counterman v Colorado. There is no set date for when they will decide, but no matter the decision it will have an impact on how people communicate online.

Should they rule in favour of Counterman, then the vague boundaries of making true threats online would remain vague.

In Ms Whalen’s brief to the Supreme Court, she said, “preventing States from punishing egregious conduct like Counterman’s… would not only provide special protections for otherwise unprotected speech. It would also significantly hinder States’ ability to protect their most vulnerable citizens ‘from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.’ R.A.V. v City of St. Paul.”

This means the government would have to prove the speaker intended to harm or threaten a person who experienced distress, which could be difficult.

But should the court rule in favour of Colorado, it would establish that any speech written online, if perceived by a “reasonable person” to be threatening, could be considered a true threat – and therefore not protected by the First Amendment.

It would force people to think twice before sarcastically messaging their friend, “I’m going to kill you” just because they’re running late for a meetup.