I just finished listening to the live feed of the Supreme Court oral argument in Counterman v. Colorado. The question presented is "whether the First Amendment precludes criminal conviction of a defendant who makes a communication that a reasonable person would understand as a threat of injury or death unless the prosecution has proof beyond a reasonable doubt of the defendant's subjective intent or knowledge that it would be taken as such a threat." Along with Allyson Ho and Brad Hubbard from Gibson Dunn, I filed an amicus brief in the case for the victim: singer-songwriter Coles Whalen. In the brief, we explained that a ruling for the defendant (Counterman) would make it very difficult for law enforcement to protect victims of delusional stalkers and devious stalkers. Both Colorado and the Solicitor General referred to our brief in their powerful presentations to the Court. I hope that the Court will consider the need for effective protection of stalking victims–and the lack of any originalist foundation for precluding such protection–and rule in Colorado's favor.
Some quick factual background: Whalen, the victim in the case, was making a name for herself as a singer-songwriter. But in 2014, she began receiving thousands of unsolicited messages from Counterman that only intensified in frequency and hostility over time.
Things escalated in spring 2016, after Counterman repeatedly messaged Whalen with such threats as "Die, don't need you" and "Staying in cyber life is going to kill you." He also made clear that he'd been watching her. The messages terrorized Whalen, and she eventually sought help—first from family and later from law enforcement, who arrested Counterman for stalking in May 2016. After a three-day trial, the jury convicted Counterman after finding that he knowingly communicated with Whalen in a way that would cause a reasonable person to suffer serious emotional distress. After the conviction was affirmed by Colorado's courts, the Supreme Court agreed to review the First Amendment question presented.
In today's oral argument, Colorado's Attorney General–Phil Weiser–gave a compelling defense of Colorado's stalking statute. During his argument, he referenced a passage in Whalen's amicus brief about "delusional" and "devious" stalkers that is worth highlighting (citations omitted):
The State's approach (like most other jurisdictions') appropriately reflects the reality that stalkers commonly harbor dangerous delusions or other mental conditions that underlie their obsessive contacts with their victims. Accepting Counterman's position would mean that the more delusional the stalker, the harder for the State to protect victims. Nothing in the First Amendment requires such a perverse result.
In addition to preventing States from punishing delusional stalkers, adopting Counterman's position would also create a dangerous roadmap that would enable devious stalkers to inflict terror with impunity. To evade prosecution, a devious, sophisticated stalker need only intersperse his threats (e.g., "Die, don't need you") with purportedly delusional messages. In that situation, a specific-intent requirement would not only make an arrest warrant harder to get but also erect a near-insurmountable hurdle for prosecutors who must show a subjective intent to threaten beyond a reasonable doubt.
The point that Attorney General Weiser emphasized today is presumably why the majority of states–and most federal Courts of Appeals–have recognized that the First Amendment does not impose barriers to legislative action to criminalize "true threats." A true threat is narrowly defined as a statement that a reasonable person would understand, in context, to be a serious expression of intent to cause unlawful physical violence–and is outside First Amendment protection.
Attorney General Weiser also cited another amicus brief in the case supporting Colorado–this one filed on behalf of VC's own Eugene Volokh and Professors Evelyn Douek (Stanford Law) and Genevieve Lakier (U. Chicago Law). Here is a key passage from their brief about how stalking laws (such as Colorado's) pose no threat to First Amendment values:
Stalking laws like Colorado's prohibit a course of repeated conduct that is by definition directed at a specific person. So, while the repeated conduct may include communications, it is typically not addressed to a broad public audience. That means stalking laws pose much less risk to the "uninhibited, robust, and wide-open" public discussion that the First Amendment protects than laws that punish one-off, untargeted communications. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). A stalker's communications are also always directed at an unwilling listener. As this Court's cases recognize, "[n]othing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit." Rowan v. U.S. Post Off. Dep't, 397 U.S. 728, 737 (1970). Finally, because stalking convictions require proof of multiple instances of the offending behavior, it is less likely that stalking laws will be used to "criminaliz[e] inevitable misunderstandings" than threat statutes. For all of these reasons, it is not necessary to read a heightened mens rea requirement into stalking laws in order to ensure adequate "breathing room" for expressive freedom.
Today's oral argument also made clear that Counterman has no real history or tradition supporting his position. The First Amendment has never been considered to require some sort of heightened "mental state" requirement for objectively threatening communications. A ruling overturning Colorado's statute (and effectively those in many other states) would not be originalist in any sense of the term.
The United States filed an amicus brief making this point, skillfully reciting the history of prosecutions for threatening communications. One passage in the Solicitor General's Brief is worth more attention than it has received–a passage demonstrating persuasively that, at the Founding, proof of specific intent was not generally a requirement in American criminal law:
The common law at the time of the Founding did not generally require proof of specific intent in criminal cases. Rather, it often used "a purely objective standard to presume a subjective state of mind and hence wilful and reckless conduct," although that presumption ultimately evolved into a "rebuttable" one. Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability, 31 Hastings L.J. 815, 839 (1980). Indeed, "historical evidence suggests that courts were unable to undertake [a] subjective inquiry until relatively recently" because such inquiry was thought to be "beyond the power of juries" and the introduction of evidence that would be "most relevant to the subjective inquiry" was barred. Id. at 844-845 (emphasis omitted); see J. W. C. Turner, The Mental Element in Crimes at Common Law, 6 Cambridge L.J. 31, 33 (1936) (noting "the practice of imputing mens rea from certain given sets of circumstances" and "the well-established rule that a man is presumed to intend the natural consequences of his acts").
Professor Robinson's historical point is one often overlooked by modern day criminal law commentators. Most of us have grown up in a world of the Model Penal Code, which beginning in 1953 made mens rea requirements (purpose, knowledge, recklessness, or negligence) critical features of American criminal law. But that approach is not at all what the Founders would have understood in crafting the First Amendment. Indeed, as Professor Robinson points out, at the Founding, defendants could not even testify as to their own state of mind:
[Historically,] [m]ost devastating to this inquiry [into a defendant's subjective state of mind] was the rule which prohibited defendants from testifying in their own behalf, on the ground that they were incompetent as witnesses because of their interest in the case. At first, a defendant was not even permitted to present any witnesses. This rule later was altered to allow defense witnesses to testify, although not under oath, and thus with less weight than the Crown's witnesses. Ultimately, the rule was liberalized to permit defense witnesses under oath in all cases. The rule disqualifying defendants was repealed in 1853, but defendants were not permitted to testify under oath until 1898. Thus, until the early twentieth century no such inquiry into the actor's actual state of mind was or could have been undertaken effectively. This confirms the doctrinal historical evidence that until that time the reckless-negligent distinction was not implemented.
Robinson, supra, at 845.
In short, no good reason exists–from either a policy or historical perspective–for preventing legislators from enacting laws criminalizing objectively true threats.
My client– Coles Whalen–also appreciated that fact that the trauma she suffered from Counterman's repeated threats was highlighted during today's oral argument. The threats forced Whalen to move away from her home and essentially abandon her career as a stage performer, as we recount at length in her amicus brief. She has asked me to pass along an important message to other stalking victims:
I am glad the Supreme Court heard this morning about the trauma that I suffered due to the repeated threats that I was sent over many years. Today's argument highlighted the far-reaching implications of this case. I hope that the Court's decision will be made with the understanding that violent, threatening communications cause significant and enduring harm to their victims. If you are afraid—please—trust yourself, and reach out for help.
Another amicus brief filed in support of Whalen came from (among other groups) Legal Momentum, the National Crime Victim Law Institute, and the National Domestic Violence Hotline. The hotline number can be found here.
One last note: VC's own John Elwood skillfully presented the arguments this morning for Mr. Counterman.
Update: Several of the comments flagged the point that I referred to Attorney General Weiser as "General Weiser." That was the usage, as I recall, of at least one Justice during the oral argument. But in looking at Bryan Garner's Dictionary of Legal Usage, he makes a persuasive argument that "[d]espite its prevalence among some of the most esteemed members of the bar and judiciary, it [referring to attorneys general as "General So-and-So"] is incorrect." I have updated accordingly. I have also corrected a few typos.
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