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.
