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On April 19, 2023, the US Supreme Court heard oral arguments regarding the appealed stalking case Counterman v. Colorado. While “true threats” are not protected by the First Amendment, the question at the heart of this case is whether or not statements a speaker did not intend to be threatening constitute “true threats” if a reasonable person could interpret them as such.

Counterman v. Colorado Appealed To U.S. Supreme Court

Billy Counterman was convicted of stalking after years of attempted communication with a local female musician. Despite unfriending and blocking the defendant, Counterman continued to send messages online such as “Was that you in the white Jeep?” and “I’ve had tapped phone lines before. What do you fear?” Counterman’s defense argued that a conviction would violate his First Amendment right to free speech as his messages were not intended to be threatening. Asserting that a reasonable person would interpret the messages as threats, a Colorado court found Counterman guilty of stalking.

After the Colorado Court of Appeals affirmed Counterman’s conviction, the U.S. Supreme Court agreed to take up the issue. Now that oral arguments have been presented, the final decision is expected in June.

Possible Implications For Sexual Assault Survivors

In a statement for the National Law Journal, Ask LLP attorney Judie A. Saunders commented on the implications of this case for sexual assault and harassment survivors. While Saunders agreed that intent should be considered before ruling, she stated that intent alone should not exclude defendants from criminal convictions in stalking and harassment cases.

Saunders expressed concern that the Supreme Court’s fixation on hypersensitivity could be detrimental to the needs of survivors. Saunders told the National Law Journal that “I would argue those who receive threats are not more sensitive, but individuals who were previously allowed to skate these things and never called to task are now being held accountable.”

Click here to read Saunders’ comments and learn more about the Supreme Court’s oral arguments in the case.