Supreme Court Rules in Favor of Online Harasser

June 30, 2023

Online threats and harassment pose a significant problem in today’s digital landscape. With the Internet’s global reach, the ease of publishing and posting content, and the potential for anonymity or lack of consequences, individuals find it convenient to share messages that are threatening, harassing, or intimidating. While some of these messages may fall under the protection of the First Amendment as free speech, despite being unpleasant, unwanted, and harmful, there exist messages that cross a line known as “true threats.” These messages represent immediate and credible threats to an individual’s safety and well-being. However, a considerable number of posted messages exist in a gray area. These messages may be intimidating, harassing, or unpleasant, but they may not qualify as true threats.

On June 27, 2023 the Supreme Court reversed an online harasser’s criminal conviction and the Colorado Supreme Court’s finding that there was no need to show that the harasser intended to post threatening messages. The Court noted that a prosecutor dealing with posted online materials must prove beyond a reasonable doubt that the defendant at least had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness. It’s not necessary to show that the defendant intended that their message be taken as a threat, just that they knew that the statement was of a threatening character, and that they were at least reckless in posting the message.

Online Stalking and Harassment

Coles Whalen is a Denver-based pop and country singer/songwriter who tours the country and has released six independent records. Among her followers on social media was 61 year old Billy Raymond Counterman. Like many celebrities, Whalen had two Facebook profiles — a public account for promoting her music and a private account for personal use.

In 2014, Counterman sent Whalen a Facebook friend request, initiating a series of troubling events that would take place over the next two years. Within this time, Counterman repeatedly sent “clusters” of messages to both Whalen’s public and private accounts – both the public one and the private one. Whalen deleted some of the messages and didn’t respond to any of them. She said the messages were “weird” and “creepy.” Whalen also blocked Counterman on Facebook multiple times to prevent him from sending her messages, but he would create new Facebook accounts and continue to send her messages.

As time went on, Counterman’s messages grew increasingly unsettling, causing Whalen to experience fear and serious concern. She was “extremely scared” of being hurt or killed after Counterman sent her messages saying that he wanted her to die. Counterman went as far as mentioning “physical sightings” of Whalen’s activities outside her online presence, providing invitations for coffee, making suicide threats, and divulging personal details about her life. These actions led Whalen to reasonably suspect that Counterman might be following her in public spaces.

Despite Coles Whalen’s efforts to protect herself by blocking Billy Raymond Counterman’s account, the situation took a disconcerting turn. Counterman, undeterred by the block, resorted to creating aliases, allowing him to persistently send Whalen messages.

The Challenge for Online Celebrities

These “creepy” messages are a real problem for online celebrities or near celebrities, particularly women. Services like TikTok, Twitter and other social media sites are essential for celebrities to market and promote themselves and their art, talent, or music. When they respond to postings, they create an artificial relationship with their “fans” –  the vast majority of whom are respectful, polite, and enthusiastic. It’s safe to say that  majority of fans understand and respect (more or less) boundaries, and appreciate the fact that an “online” comment from a celebrities does not equate to a personal relationship.

However, a minority of fans don’t understand this. They can become obsessed with the celebrity and genuinely believe that they have an actual relationship with the celebrity. To make matters worse, fraudsters often spoof celebrity websites or Twitter accounts, pretending to be the celebrity (again, mostly women) to trick the fan into giving money. Even more frequently, a fraudster may use a photograph of the celebrity to con fans. When the fan learns that they have been conned, they may strike back at the true celebrity.

From Unwanted to Harassing: Crossing the Line

Whether motivated by revenge, a false sense of relationship, obsession, or even a desire to “protect” the celebrity, the fan’s comments may become initially unwanted, then unduly intimate, and ultimately harassing or simply frightening. Comments like “I’ll see you at the event” or “You shouldn’t put your home address online” may be either friendly or threatening, depending on the context. As fandom becomes obsession, however, the celebrities’ fear and concern become initially justified and finally consuming.

The Court, however, found a problem with when and how to draw the line between comments that are merely annoying and those which are legitimately taken as “scary.” One is protected speech, the other, criminal.

True Threats

The Supreme Court noted that a true threat is someone saying they are going to commit unlawful violence. For example, a statement like “I am going to kill you,” is a clear threat. Even then, however, there has to be some understanding that the threat is real and not mere joking or hyperbole. But even so, the Court doesn’t just look at the content of the speech and determine whether it is prohibited or not. In order to prevent “self-censorship,” people being afraid to make comments that ARE protected by the First Amendment because of their fear that they may be prosecuted, the Court here imposes some degree of proof that the defendant had the prohibited mental state (what they thought) when the posted the online message (what they did). As the Court observed:

“The First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability [because p]rohibitions on speech have the potential to chill, or deter, speech outside their boundaries.”

Having said there must be some “intent” or mental state required for a criminal threat’s prosecution, the next question is what level of intent must be proven. Is posting messages that negligently inflict harm on a person enough? What if one acts with reckless disregard for the impact on the person? Or must the government prove that the person intended that the message be taken as a threat? Is a message that reasonable people would take as a threat sufficient? What if the victim is particularly skittish, or unusually thick skinned?

Recklessness and First Amendment Rights

Here the Court opines that the government must, at a minimum show that the person posting the threat acted “recklessly.” The Court noted that:

“Reckless defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.”

As a result, they forfeit their First Amendment rights when they recklessly engage in prohibited speech.

Addressing the facts of Mr. Counterman, the Court noted that, under Colorado law, the prosecution needed only show that a reasonable person (victim) would likely feel threatened, without any need to show that Counterman acted knowingly, intentionally or, under the new standard imposed by the Court, recklessly. As the court noted:

“[t]he State had to show only that a reasonable person would understand his statements as threats. It did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment.”

Implications of the Court’s Opinion on Online Harassment Cases

Going forward, statutes that allow for conviction without demonstrating at least recklessness, or jury instructions that don’t require establishing a specific mental state, are unlikely to withstand constitutional scrutiny. While this could potentially provide some additional freedom of action for online stalkers or harassers, it’s important to note that the majority of cases involving threats or intimidation are likely to present evidence of intentional or reckless behavior by the defendant. The real concern arises in ambiguous situations where determining the appropriate legal response may pose challenges.

If you are a victim of online harassment, take action by documenting the incidents, reporting them on the platform, seeking support from friends and family. For further assistance, contact KJK Cyber Security attorney Mark Rasch (MDR@kjk.com; 301.547.6925).