Emory Undergraduate Journal of Law & Society

Stalking is a serious crime involving a pattern of behavior designed to intimidate, harass, or control another person. While threats of violence are often part of stalking, the crime itself extends beyond threatening speech, encompassing a range of behaviors that cause significant harm to victims. The Supreme Court’s 2023 decision in Counterman v. Colorado highlights these concerns by reducing stalking to a question of verbal threats, neglecting the broader context of persistent harassment. In this case, Billy Counterman’s conviction for stalking was overturned because the trial court failed to prove he had malicious intent to threaten the victim, C.W. The Supreme Court reasoned that, without malicious intent, Counterman’s speech was protected under the First Amendment. This decision stemmed from concerns that an objective standard for defining threatening speech might chill free expression, so the Court opted for a subjective test, adhering to the principle that there can be no crime without criminal intent [1]. While this rationale is relevant in cases involving only verbal threats, it overlooks a key issue: Counterman was charged under an anti-stalking statute, not a law addressing threatening speech. By reducing stalking to mere verbal threats, the Court’s ruling risks undermining the effectiveness of anti-stalking laws, leaving victims of stalking insufficiently protected.

Billy Counterman harassed C.W., a local musician, for two years by sending her a stream of unsolicited, disturbing Facebook messages. Despite being blocked multiple times, he created new accounts to continue this unwanted communication. His messages ranged from overly intimate comments, such as “Good morning sweetheart”; to statements suggesting surveillance, like “Was that you in the white Jeep?”; and even threatening remarks, such as “Fuck off permanently” and “You’re not being good for human relations. Die” [1]. These messages caused C.W. severe emotional distress, prompting her to alter her daily routine out of fear for her safety. Consequently, Colorado trial court convicted Counterman under the state’s anti-stalking statute, which criminalizes repeated communications that “would cause a reasonable person to suffer serious emotional distress” and indeed caused such disturbances to the plaintiff [2]. However, Counterman appealed, arguing that his speech was protected under the First Amendment unless the state could prove he was aware of the threatening nature of his messages. The Supreme Court sided with Counterman in a 7–2 decision, overturning his conviction.

Writing for the majority, Justice Elena Kagan framed the case as a clash between free expression and personal security against “true threats”— a category of speech historically excluded from First Amendment protections [3]. The Court held that to prevent self-censorship, criminalizing speech like Counterman’s required proof of his subjective intent to threaten, even if the messages are objectively threats based on a reasonable person standard. This reasoning rests on the principle that actus non facit reum nisi mens sit rea [4]. While the ruling appears to be logically sound and aligns with precedents on true threats, it misses a critical point: Counterman was not convicted for communicating. Although the two concepts are often intertwined. As a result, the broader and more nuanced pattern of behavior exhibited by Counterman – behavior that should be determined as stalking.

In her concurring opinion, Justice Sonia Sotomayor pointed out that Counterman was prosecuted under Colorado’s anti-stalking statute “for a combination of threatening statements and repeated, unwanted, direct contact with C.W.” [1]. As such, this case should “[require] less First Amendment scrutiny” because stalking, while it may involve speech, is primarily about conduct [1]. Therefore, true threats conveyed through speech are integral to the crime but do not capture the full scope of the issue. The persistence of Counterman’s behavior is a crucial factor that caused the severe emotional distress and life disruptions experienced by C.W. The fact that he harassed the victim over a span of two years, repeatedly circumventing her attempts to block him, should be recognized as a key aspect of the overall stalking conduct, as it “violates basic social norms of privacy and consent by persisting even in the face of a lack of consent” [5]. This sustained course of action goes beyond mere speech and constitutes a pattern of behavior that would cause a reasonable person fear and distress.

Even when focusing solely on speech, threats should not be the only issue under consideration. Based on a survey by the National Institute of Justice, under half of stalking victims have received direct threats from the stalker [6]. Nevertheless, stalking is far from harmless. Many of Counterman’s messages appeared benign–“Good morning sweetheart” “I am going to the store would you like anything?”–yet they were deeply unsettling to the victim [1]. This reaction is entirely understandable, given that the messages came from a stranger who obstinately “presumed a relationship that did not exist” [5].

Recognizing this issue, the anti-stalking Model Code did not include a threat requirement, as doing so could overlook non-threatening “conduct which, taken in context, would cause a reasonable person to fear” [7]. This is particularly true in cases of cyberstalking, where the anonymity of the perpetrator creates a power imbalance that leaves victims feeling vulnerable– they cannot know what the stalker is capable of, which only heightens their fear [8]. As a result, stalking is a much broader crime than verbal threats and cannot be reduced to threats alone. By failing to recognize stalking as a broader pattern of conduct, the effectiveness of anti-stalking laws would be undermined, leaving victims without the protections they need. Stalking is a distinct and deeply harmful form of abuse that requires a legal framework capable of addressing its complexities, ensuring that those who suffer from it receive appropriate justice and support.

References

[1] Counterman v. Colorado, 600 U.S. ___ (2023).

[2] Colo. Rev. Stat. §18–3–602(1)(c) 

[3] Virginia v. Black, 538 U. S. 343, 359 (2003)

[4] Matthew Lippman, Contemporary Criminal Law (Thousand Oaks: Sage Publication, 2010), 114.

[5] Genevieve Lakier, and Evelyn Douek, “The First Amendment Problem of Stalking: Counterman, Stevens, And the Limits of History and Tradition”, California Law Review: 49.

[6] U.S. Department of Justice, “Prevalence, Incidence, and Consequences of Violence Against Women: Findings From the National Violence Against Women Survey”

[7] U.S. Department of Justice, “Project To Develop a Model Anti-Stalking Code for States,” Criminal Law Bulletin: 45.

[8] Tory Shafer, “Does a stalker need to threaten their victims? In Counterman V. Colorado, The Supreme Court Shrugs,” 45.