U.S. Supreme Court Will Hear Colorado Social Media Stalking Case Involving Musician

What constitutes a criminal threat on social media?

That's a question the U.S. Supreme Court will consider in April when it reviews a Colorado case in which Billy Raymond Counterman was convicted of stalking singer-songwriter Coles Whalen over a six-year period beginning in 2010.

In 2016, Counterman, now 61, was sentenced to four and a half years in prison on two Class 5 felonies that were deemed to be "true threats" to Whalen, a decision upheld by the Colorado Court of Appeals, although Counterman claimed his messages constituted protected speech.

Now, in the second big Colorado case that SCOTUS will review this session (the first was the gay-weddings website case heard in December), Billy Raymond Counterman v. The People of the State of Colorado will present oral arguments around the question of whether threats made via social media are actually “true threats,” and thus unprotected by the First Amendment, or whether the prosecution must prove that the sender subjectively understood that the message was threatening or meant for it to be. In addition, the court will review whether it is enough to show that an objective, “reasonable person” would classify the messaging as a violent threat.

Counterman, who has been out of jail since January 2020, is being represented by the Cato Institute, a nonpartisan public policy research foundation focused on “individual liberty, free markets and limited government.” Cato’s team — which includes research analyst Trevor Burr, a graduate of the University of Colorado Boulder as well as the University of Denver Sturm College of Law — argues that although Counterman was convicted of sending “admittedly abrasive online messages,” they weren't true threats, but instead should be treated just like "obscenity, defamation, and other exceptional categories of unprotected speech."

Wrote the Cato team: “As the Internet enhances our ability to communicate and express our views, it also enhances the government’s ability to police our communication and expression. Affirming that the First Amendment’s protections apply fully to online expression is an independent reason to take up this case.”

Over the years that he communicated with Whalen — a pianist who spent her youth in Colorado before moving to Nashville in 2007 and then back to Denver in 2012 — Counterman’s messages to her on Facebook (which reportedly numbered more than a million) nearly destroyed her career, she told Westword in 2017. The messages included invitations for coffee, threats to kill himself, and details about her personal life that made her think he was following her. Ultimately, his attention began to affect her ability to perform in public.

Not only were the messages seemingly endless, but they continued through alias accounts, even after Whalen asked Counterman to stop contacting her and then blocked him. Each time, he would create a new profile and reconnect with her.

Whalen did not respond to a request for comment; her website indicates that she has not performed live in Colorado since 2018, although she did perform in Arizona and Florida in 2021. She did, however, post the following message on her website:

"The thousands of unstable messages sent to me were life threatening and life altering. I was terrified that I was being followed and could be hurt at any moment; I had no choice but to step back from my dream, a music career that I had worked very hard to build. As the Supreme Court weighs this issue, I hope it will consider how dangerous stalking is for victims and their families all over this country. The threat was very real and caused me significant and enduring harm. I am grateful that when I reported these alarming messages, they were taken seriously, and many folks in law enforcement and the criminal justice system did everything they could to protect me. If you are afraid – please – trust yourself, and reach out for help."
Back in 2017, Whalen’s friend, bassist Kim O’Hara, said that Whalen “was too frightened to book shows because it meant we had to post online where we would be and at what time. We did not know what Bill Counterman looked like — he could be anyone at any show. Coles became afraid to talk to people; she was anxious, unhappy, and constantly checking in with security. Playing a show was clearly more stressful than joyful.”

After Counterman was released while awaiting his initial trial, Whalen said that she would hand copies of his mug shots to bookers and bouncers, asking that they keep an eye out for him.

Meanwhile, Whalen’s attorneys discovered that Counterman had been arrested in 2002 and again in 2011 for threatening to harm women, saying things like, “I’ll put your head on a fuckin' sidewalk and bash it in” and “I will rip your throat out on sight,” according to attorney Katy Miller.

Counterman was convicted by an Arapahoe County jury of stalking in 2016, and in June 2020 — following a case that arose around students tweeting at one another after the 2013 shooting at Arapahoe High School — the Colorado Supreme Court revised its standard for what constitutes threatening speech, creating a five-part test to determine whether social media communication could be considered a “true threat,” with a focus on context as part of the criteria. As Justice Monica M. Márquez wrote for the court, “We hold that a true threat is a statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence.”

In Counterman’s July 2021 appeal, which he lost, the Colorado Court of Appeals determined that “Counterman’s statements were true threats.”

But what will the nation’s highest court decide that prosecutors going forward must prove in order to convict under the “true threat” argument? Stay tuned.