With a few exceptions the Supreme Courts of the United States both in Washington and 50 state capitals are courts of “limited jurisdiction.” That is to say that they don’t hold trials and they essentially determine what cases to hear and what to avoid. In a ruling issued on June 27, the U.S. Supreme Court demonstrated judicial “indiscretion” by wading into a petty criminal matter and trying to balance 1st Amendment rights with the right “to be left alone.” In so doing, it has put all of us at risk and made the lives of people who do law enforcement (cops, district attorneys and judges) more troubled.
In the past generation, the rise of Facebook has allowed for a new form of harassment. It used to be that if I wanted to harass you, I would have to follow you in person. Then, if I had your telephone number, I could call you incessantly, although you would have to answer. I could also email you but, again, I needed your email address to accomplish that. But Facebook, changed the landscape of harassment. Now, I can get out of bed in the morning, make a cup of coffee and start to communicate/bother you without leaving the comfort of my home.
C.W. is a Colorado resident who works as a singer/performing artist. Thus, she has a public persona and, of course, a Facebook account. Beginning in 2014 and continuing for two years, she attracted the attention of Mr. Counterman. They never met but it seems Mr. Counterman fancied himself an admirer and electronic “friend” of the artist. His communications were constant and at times mordant and threatening. They included statements which reflected Counterman’s awareness of what car C.W. drove and where she had been. One statement said: “F—k off, permanently.” Another; “You are not being good for human relations. Die.”
C.W. tried blocking Mr. Counterman but when she did he would simply sign back on using a new Facebook account. So, eventually, she went to the authorities and indicated that she was being stalked. Colorado charged Mr. Counterman with a statute making it unlawful to engage in communication which “would cause a reasonable person to suffer serious emotional distress.” It is a Class 5 felony. Colorado Statute 18-3-602(1)
Mr. Counterman’s defense was that he had a 1st amendment right to communicate with his fellow Coloradan, whether she like it or not. The majority opinion of Justice Elena Kagan indicates that there was no evidence that there ever was any form of physical contact or that Counterman ever actually “followed/stalked” the purported victim.
Counterman v. Colorado, addresses the matter of whether a stalking/harassment statute needs to be evaluated under an “objective reasonable person” standard or whether the defendant had mens rea, an “intent to threaten.” Yesterday, the Supreme Court of the United States provided us with four opinions and consumed 55 pages of text to analyze this. The conclusion of the majority was that unless the State could show an intent to threaten C.W., the conviction of a crime could not withstand the liberties afforded by the 1st Amendment.
Parenthetically, if you are a “court watcher” this presented an interesting judicial formation. Kagan wrote the majority opinion joined by Roberts, Alito, Kavanaugh and Jackson. Sotomayor and Gorsuch concurred. Barrett and Thomas dissented. What made it interesting to this writer was that Mr. Counterman’s communications were the classic “creepy male” communications that men will impose upon women when smitten or angry with them.
Were this a moot court competition, the debate would have been interesting. But by taking this issue on in a national platform, the Supreme Court has unwittingly set free those who like to “date” electronically without revealing who they are or what are their real intentions. These were not communications intended to promote the free exchange of thoughts or ideas. These were overt efforts by one person to pretend intimacy with someone he did not know and who did nothing to encourage these affections. And, as noted above, when some of the communications suggest “death,” the criminal justice system needs to take notice and act.
We write because when the Supreme Court of the United States speaks, even with four opinions, their words resonate throughout the judicial system. Effective yesterday, the 1st Amendment became the new defense to thousands of stalking/harassment cases in all 50 states. And, district attorneys are shaking their heads. First, how do they prove this “criminal intent” in a world where the defendant has no obligation to testify. Yet, they now must prove that the people who pursue others in creepy ways have the “intention” to do so. It means if the district attorney takes the case to trial and the defendant does testify, the D.A., the judge and the jury will have to listen to absurd defenses. Defenses like: “I just wanted to ask C.W. why she drives a white car.” “I just was inquiring whether C.W. wanted me to bring her something from the pharmacy.” This will force the district attorney to ask what made the defendant think that someone he does not know would want him to run errands for her.
In the end, this case does a disservice to society in general under the rubric of defending free speech. Had Mr. Counterman bombarded C.W. with communications about the need to support a presidential candidate or to save the environment, this might be a serious 1st Amendment case. Instead, the Court has effectively nullified a litany of state laws passed in the last 40 years to stop harassment. District attorneys tend to stay away from prosecutions where they have little chance to meet their burden of proof while also demonstrating to judges and juries that they can’t really offer any protection to people like C.W.; people who are just trying to lead their lives free of harassment by people they don’t even know.
The Counterman case involves people who don’t know each other in any tangible sense. But in the domestic relations world, this kind of harassment is a daily event among people who dated, married, had kids together and the like. People deserve protection from others who call, text, email or otherwise communicate dozens of times each day or week. Whenever people communicate there is potential for 1st Amendment implications. Counterman was not such a case.
The opinions and syllabus are below.
22-138 Counterman v. Colorado (06/27/2023) (supremecourt.gov)
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