How a New Supreme Court Decision Could Make Life More Dangerous for Victims of Stalking

In a world where any random anonymous person on Twitter can send you any number of horrible words in a near instant, what actually counts as a “true threat” (one that would be against the law) and what is just protected speech under the first amendment? That’s something the Supreme Court is currently deliberating on, having heard the case for Counterman v. Colorado last week — and the ultimate decision could make it more challenging for stalking victims to press charges and feel safe.

Some background on the case: “Billy Raymond Counterman repeatedly contacted a person over Facebook in 2014, sending her ‘creepy’ messages from numerous different accounts even after she repeatedly blocked him. Some of the messages implied that Counterman was watching her and saying that he wanted her to die or be killed,” per Oyez, an online archive of SCOTUS cases. “She reported Counterman to law enforcement, who arrested him in 2016. He was charged with one count of stalking (credible threat), one count of stalking (serious emotional distress, and one count of harassment; before trial, the prosecution dismissed the count of stalking (credible threat). Counterman claimed that the remaining charges, as applied to his Facebook messages, would violate his right to free speech under the First Amendment because they were not ‘true threats.'”

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But this leads to the courts now weighing whether a person accused of stalking or making threats can claim that they just didn’t mean it that way? Like, without the government being able to prove they had the specific intent to do harm or really threaten another person, the repeated communications (like those sent by Counterman) even if they are of that aggressive nature could potentially not be considered “true threats” — and, thus, would be protected by the first amendment.

Colorado Attorney General Phil Weiser argued before the court that the sheer amount of messages that were sent in the context of volume, frequency, and some of the messages, along with how the victim perceived those messages, the state was right to send him to prison because threatening messages are usually the start of something much worse.

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“Requiring specific intent in cases of threatening stalkers would immunize stalkers who are untethered from reality,” Weiser told the justices. “It would also allow devious stalkers to escape accountability by insisting that they meant nothing by their harmful statements. This matters because threats made by stalkers terrorize victims, and for good reason, 90 percent of actual or attempted domestic violence murder cases begin with stalking.”

And that has advocates concerned about how victims and survivors of stalking can actually continue to defend themselves and seek protection when they’re up against extreme harassment from a stalker who might be delusional or not in their right faculties— and what it means for broader communication on social media channels.

“Stalking uniquely is one of those situations where the more deluded the person is, the more dangerous they are, and to give them basically a free pass because they’re deluded would really have catastrophic consequences,” as Mary Anne Franks, president of the Cyber Civil Rights Initiative and coauthor of a brief to the court siding with the state of Colorado, told Fast Company.

Is the court taking this seriously?

To get this out of the way: Victims and survivors of stalking are already likely to believe they won’t be taken seriously or that their needs and safety aren’t important enough to seek help. Per data from the Justice Department, stalking victims are already extremely unlikely to seek help from law enforcement and are likely to believe that police won’t or won’t be able to do anything to help them. And among those who do seek help see either no action taken in half of the cases and arrests are only made in 7.7 percent of them. And when we revisit that stat that Weiser mentioned, that “90 percent of actual or attempted domestic violence murder cases begin with stalking” — it feels all the more important and urgent that this matter is considered as one that is lethal and essential to get right (with compassion and empathy for victims and survivors).

That’s why there are also some concerns among advocates that the court in its current form may lead to a decision that won’t do that. As the case was presented, a few justices found the apparent “sensitivity” of people on- and off-line to be a greater concern than the actual stalking — with Justices Neil Gorsuch, Amy Coney Barrett, Clarence Thomas and John Roberts all seemingly making light of the messages the victim received or comparing her distress to the culture war dog whistle of “trigger warnings.” As though the victim just didn’t understand the semantics of a random dude sending her persistent and hostile messages.

“We live in a world in which people are sensitive, and maybe increasingly sensitive. As a professor, you might have issued a trigger warning from time to time when you had to discuss a bit of history that’s difficult or a case that’s difficult,” Gorsuch said. “What do we do in a world in which reasonable people may deem things harmful, hurtful, threatening? And we’re going to hold people liable willy-nilly for that?”

So there is a question, when the court finally makes their decision and releases the majority opinions, are the courts going to affirm (intentionally or not) the anxieties and fears that victims and survivors of stalking already believe about themselves: That they are just too sensitive and that there’s nothing anyone can or will do to help them.

Before you go, checkout the mental health apps we swear by for giving our brains a little extra love in stressful and scary times:

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