Home » News » Colo. court affirms stalking conviction of man for repeated Facebook messages to musician

By David L. Hudson Jr., published on August 11, 2021

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A Colorado law prohibiting stalking that causes serious emotional distress could be applied to convict a man who sent repeated Facebook messages to a musician, a state appeals court has ruled.


The man’s string of messages could be interpreted as true threats, the court held, and thus the First Amendment challenge failed.


Beginning in 2014, Billy Raymond Counterman sent clusters of messages to the public and private Facebook accounts of C.W., a local musician and public figure. C.W. blocked Counterman, but he would create new fake accounts and continue to send messages.


In one message, he told C.W. that he hoped she would die. In another message, he alluded to following her in public and making physical sightings of her. Eventually, C.W. contacted law enforcement and sought a protective order.


Prosecutors charged Counterman with harassment under the state’s stalking law that prohibits causing serious emotional distress and prohibits credible threats. The state ultimately proceeded to trial on a charge under the following part of the Colorado stalking law:


  • A person commits stalking if directly, or indirectly through another person, the person knowingly:

. . .


(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.


A jury convicted Counterman under this law, and the trial judge sentenced him to four and a half years in prison.


On appeal, Counterman argued that the law was unconstitutional as applied to his Facebook messages because his messages were protected speech, not true threats.


The Colorado Court of Appeals reasoned in its July 22, 2021, decision in People v. Counterman that at least some of Counterman’s messages were true threats. The court noted that Counterman expressed animosity toward C.W. and that his messages directly targeted her. The appeals court focused on the reaction of C.W. — “one of escalating alarm and fear of Counterman.”


Counterman contended that none of his messages amounted to an explicit statement of purpose or intent to cause harm. However, the appeals court said this claim ignored the specific context of Counterman’s messages. Furthermore, the court warned: “Recent widely reported cases of online harassment and stalking of public figures — particularly of women — involve internet users who are ‘strangers to the victims’ granted previously unavailable access to their targets through social media.”


Counterman also challenged his conviction because the trial judge failed to instruct the jury on the meaning of true threats. However, Counterman’s attorney did not seek a specific jury instruction on true threats. Further, the appeals court found that “the trial court didn’t plainly err by failing to sua sponte [of its own accord] instruct the jury on the meaning of true threats.”


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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech(2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).





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