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SCOTUS justices consider coffee dates, Eminem lyrics, and Edible Arrangement memes in case of singer’s convicted stalker


Left: Chief U.S. Supreme Court Justice John Roberts at the Supreme Court building in Washington, D.C., Friday, Oct. 7, 2022 (AP Photo/J. Scott Applewhite). Right: Singer-songwriter Coles Whalan (via YouTube screengrab).

The U.S. Supreme Court justices considered how much context is necessary for the prosecution of online threats, pondering hypotheticals including topics ranging from Eminem to Edible Arrangements.

Billy Raymond Counterman was convicted in 2017 of stalking Colorado-based singer-songwriter Coles Whalen after sending her more than a thousand messages to the rising music star. In a Supreme Court brief linked on her website, Whalen — identified as “C.W.” in court documents — describes receiving hundreds “weird” and “creepy” Facebook messages from Counterman over a period of two years. Those messages including him telling the singer that he had “physical sightings” of her in public, and at least once, he told her that he wanted her to die.

Whalen initially responded by blocking Counterman multiple times, but Counterman created new Facebook accounts and continued to send messages. Whalen learned that Counterman had served jail time for violent threats against his ex-wife, and she says she was later forced to cancel performances when she began to suffer anxiety and panic attacks.

In 2017, Counterman was sentenced four-and-a-half years in prison. He appealed, arguing through counsel that prosecution for a speech-only crime violates his First Amendment rights. The U.S. Court of Appeals for the Tenth Circuit disagreed and found that the Facebook messages were “true threats” not entitled to First Amendment protection.

Counterman’s attorney John Elwood says his client is mentally ill and did not know the impact his messages would have on Whalen. He urged the justices to to adopt a rule whereby a statement, however menacing, is not a prosecutable “true threat” unless the speaker meant or at least knew they were threatening harm.

Over nearly two hours of oral argument Wednesday, the justices discussed whether an objective or a subjective test should be applied to ascertain whether a statement is a “true threat.” An objective standard would look to a reasonable person’s interpretation that a statement threatens violence. By contrast, a subjective standard would require that prosecutors show that a person making an alleged threat actually intended to convey the threat of harm.

Justice Samuel Alito posed a hypothetical to the convicted stalker’s lawyer that zeroed in on the inherent difficulty in assessing online speech absent background context. Alito presented the case of an author writing a mystery story about one spouse killing another spouse.

“But suppose that all of the details match up with the situation with the author’s spouse and when that spouse reads it, that spouse takes it as a threat,” asked Alito.

Chief Justice John Roberts also explained how context can dramatically affect the meaning of language within electronic communications, and focused on how even the words “kill” or “die” could have different meanings.

“You can convey it in a way that’s sort of hostile, or in a way that just means, ‘you’re dead to me'” said the chief justice.

Elwood responded that those difficulties favor looking at speaker’s intent.

“I think in fact there’s a rapper who sang a song that doing exactly what Justice Alito said,” Justice Sonia Sotomayor commented.

“Yes, Eminem, as we may remember from 2014,” responded Elwood, referring a 2015 ruling in which Roberts was joined by six justices to reversed the conviction of a man who was criminally convicted of threatening his wife by posting Eminem lyrics on Facebook. In his concurrence in the case, Alito remarked that song lyrics “are unlikely to be interpreted as a real threat to a real person.”

Sotomayor appeared to favor the idea of adopting a test that looks to subjective intent. She told Elwood that without such a standard, courts would run the risk of “baking in” jury bias as to whatever would be considered the “community standard.” Given that what might count as a threat in a video game or in rap lyrics would differ from what would seem threatening in a different context, such an outcome could be very problematic for criminal defendants in its lack of uniformity.

Attorney General of Colorado Philip Weiser argued against the Court adopting any additional requirement of a speaker’s intent, warning that the outcome would “immunize stalkers” for their misdeeds.

“This matters because threats made by stalkers terrorize victims — and for good reason,” Weiser said. “Ninety percent of actual or attempted domestic violence murder cases begin with stalking.”

Roberts was not easily won over, and pointed Weiser to one statement from Counterman’s case.

“‘Staying in cyberlife is going to kill you. Come out for coffee you have my number,'” Roberts read, then asked: “In what way is that threatening, almost regardless of the tone?”

“When it’s put into the context, what is being said here is ‘if you don’t come out for coffee with me, bad things are going to happen to you,” Weiser responded.

Roberts remained unconvinced.

“I can’t promise I haven’t said that,” the chief justice cracked, eliciting laughter from the courtroom.

Roberts then pressed Weiser on another example of a statement for which Counterman was prosecuted.

“Say this in a threatening way,” instructed Roberts. “One of the things [Counterman] was convicted of was an image of liquor bottles. The caption: ‘A guy’s version of Edible Arrangements.'”

“Say that in a threatening way,” Roberts pushed again.

Weiser explained that the threat comes from combining the unsolicited messages together and putting them in the context of someone who has been bombarded by thousands of unwanted communications.

Counterman’s case lies at a critical nexus for the current Supreme Court. Some of the Court’s conservative justices have been publicly critical of what they describe as efforts to curtail free speech, particularly within the context of colleges and universities, while admitting that the First Amendment does not provide unqualified guarantees. Others on the high court bench have ruled in favor of even disfavored speech when it falls squarely within the First Amendment’s sphere. However, those same justices have also been loathe to side against prosecutors, and may be less than enthusiastic about overturning a criminal conviction.

You can listen to the full oral arguments here.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos