Legal Docket: A stalker’s intent

NICK EICHER, HOST: It’s Monday, May 15th. Glad to have you along for today’s edition of The World and Everything in It. Good morning. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

The U.S. Supreme Court handed down five opinions last week. We’ll get to those later.

But first, the case of a convicted stalker. His name is Billy Ray Counterman.

He became obsessed with a female singer in Denver named Coles Whalen. Counterman sent direct messages to her public Facebook page. She never responded, yet he sent thousands of messages over a few years’ time.

The messages taken together show a man who believed they had an intimate relationship, using pet names for her and complimenting her beauty.

EICHER: She blocked his account numerous times. He’d get angry, but he persisted by making new accounts to get around the blocks.

His obsessive messages turned dark and disturbing, and you’ll hear the justices go into more detail about that.

Ms. Whalen came to fear that Counterman would harm her. She began to withdraw and stopped public performances.

She worried he was mentally unstable and unpredictable. Eventually, she was able to combat his stalking by winning a restraining order against him.

REICHARD: Here’s what Colorado’s stalking law forbids: “knowingly…repeatedly…[making] any form of communication with another person…in a manner that would cause a reasonable person to suffer serious emotional distress and [that] does cause that person…to suffer serious emotional distress.”

In 2017, a jury convicted Counterman under that law and he received a prison sentence of 4 ½ years.

He objects to the prosecution because the jury wasn’t instructed to consider his intent. Colorado law doesn’t require that, but he says it should. Some other circuits would consider speaker intent, and he says he intended no harm to Whalen.

Listen to his attorney John Elwood, in this exchange with Justice Amy Coney Barrett:

JOHN ELWOOD: Speakers have to have some kind of confidence in advance about whether what they’re saying is going to wind them up in trouble. In the past, intent has been a bulwark because speakers know their intent. So if intent matters, that gives them some comfort in that they can say what they are going to say without criminal punishment. But, when the standard is what a reasonable person would think, then you're thinking, well, what does that mean? And, frequently, you don't know what the answer to that is. We could have a conversation -- the conversation about "I will kill you" could have gone on another five minutes and we might not have, you know, gone to ground.

JUSTICE BARRETT: Maybe you should be careful if you're going to say something like "I will kill you" or "I'm going to burn it all down" or "I'm going to shoot up a school."

ELWOOD: Well, again, you know, my mother said to me virtually every day of my childhood.

BARRETT: "I'm going to kill you"?

ELWOOD: "Drop dead." Yeah. (Laughter.) And yet, you know, I was never in fear because of that, and so, you know, context meant a lot.

BARRETT: Hopefully, context gave you some reassurance. (Laughter.)

REICHARD: Elwood would go on to argue that there ought to be only narrow and well-defined exceptions to the guarantee of free speech. And that includes factoring in speaker intent when deciding whether something is what the law defines as a “true threat.”

Here’s how the high court defined a “true threat” back in 2003. This is Justice Sandra Day O’Connor:

JUSTICE O'CONNOR: The protections supported by the First Amendment are not absolute and the Government may prohibit true threats. True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual. Intimidation in the constitutionally proscribable sense of the word is a type of true threat.

EICHER: Note Justice O’Connor’s words “… the speaker means to communicate…” That’s the rub. Counterman says he did not “mean to communicate” a threat. And that implies a need to consider his intentions before convicting him of stalking.

Arguing in support of the conviction under Colorado law: state attorney general Phil Weiser.

PHIL WEISER: True threats have always been prosecuted without protection by the First Amendment. Petitioner now seeks to impose a specific intent element onto this inquiry that’s required neither by history nor precedent….later….Requiring specific intent in cases of threatening stalkers would immunize stalkers who are untethered from reality. 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.

REICHARD: Figuring out a workable test to balance free speech with unprotected speech is no easy task. Listen to this exchange between Weiser for the state and Chief Justice John Roberts:

JUSTICE ROBERTS: Here's one of the statements for which he was convicted: "Staying in cyber life is going to kill you. Come out for coffee. You have my number." In what -- in what way is that threatening, almost regardless of the tone?

WEISER: When it's put into the context, Mr. Chief Justice, what is being said here is, if you don't come out for coffee with me, bad things are going to happen to you. There's others --

ROBERTS: Well, this is -- I'm sorry. This isn't remotely like that. It says, "Staying in cyber life is going to kill you." I can't promise I haven't said that. (Laughter.) “Come out – come -- come out -- come out for coffee. You have my number.” I think that might sound solicitous of the person's development. I mean, if we're talking just about what the statements are, how is that – what tone would you use in saying that that would make it threatening?

WEISER: The threat in that is, if you don't come out and meet me, your life's in danger. And the stalking context here, like many stalking situations, has someone who believes they're entitled to the attention and the affection of a victim.

REICHARD: All this reminded me of something I read years ago in Gavin DeBecker’s book The Gift of Fear: I’ll quote from it: “It is understandable that the perspectives of men and women on safety are so different—men and women live in different worlds … at core, men are afraid women will laugh at them, while at core, women are afraid men will kill them.”

EICHER: This fear isn’t unreasonable when you consider the history. The state’s brief mentioned a report on stalking victims … and quoted from it, saying “verbal threats are a strong and statistically significant predictor of violence,” thus “reinforc[ing] the need to take verbal threats seriously.”

Justice Elena Kagan put it this way in reference to Counterman’s messages:

JUSTICE KAGAN: And two and a half years of sending somebody unwanted emails when that person has consistently tried to block them and tried to stop them, some of those emails being pretty violent, "Die. Don't need you."; others of those emails suggesting pretty strongly that he is watching the person, "Only a couple of physical sightings," "Was that you in the white Jeep?" So I want to take it as a given that this can be objectively terrifying.

REICHARD: Given that, she went on, couldn’t Counterman be convicted on a standard of recklessness, meaning a speaker commits a wrong if he knows it might create a risk of harm?

Part of Weiser’s answer caught my ear:

WEISER: It's both delusional individuals and devious individuals. A delusional individual who is a stalker will often say, I believed we were in a relationship, I thought what I was saying was benign. And it's possible they could believe that, and yet, once they're really rebuffed, they can then turn violent, which means the following: Do you have to wait until the person actually engages in violence before you do something about what is an objectively terrorizing threat? And this is crucial for the law to be able to protect.

EICHER: Weiser pointing out that it’s not just a message or two. The effect is cumulative: many, many messages over time that create the context of danger and distress.

And yet, in this age of internet miscommunications and people so quick to take offense, where is a court to draw a line?

Which may explain why courts are split over whether a “true threat” requires the prosecutor to prove the speaker meant his words that way.

REICHARD: I’ll add another layer: Ms. Whalen’s brief mentions that Counterman had already spent time in prison for leaving threatening voicemails to several women. Violent messages, threatening murder.

That couldn’t come out in his trial, of course. That would have prejudiced Counterman’s defense.

The justices imagined situations where mere misunderstanding could get caught up in prohibited speech. I’ll link to the argument in this transcript should you want to listen for yourself. A lot of gems I didn’t have time to include here.

This is a genuinely difficult legal case and I don’t see how it would split along predictable ideological lines.

EICHER: Okay, we’ll very quickly run through the five opinions the court gave us last week.

First, a victory for California’s ballot initiative regulating the sale of pork within the state. California bans pork from sows that are kept in confined housing.

The specific question was whether one state’s restrictions that greatly affect another state’s operations ran afoul of the Dormant Commerce Clause. Here, the answer was no.

REICHARD: It’s a fractured opinion with lots of concurrences in part and dissents in part. I’ve had my eye on this case from the beginning, so I’m working on a deep dive into National Pork Producers Council v Ross. So far my reporting has taken me both to the Supreme Court and to pig farms in Iowa and Virginia for a mud-level view.

So be listening for the Legal Docket Podcast season four, this summer.

EICHER: Pig sooie!

Next opinion was unanimous in judgment: the court decided that a gender-dysphoric individual seeking asylum in the U.S. can fight his removal in court. The question was whether a court of appeals can review a migrant’s claim that the Board of Immigration Appeals got things wrong before exhausting administrative procedures. The answer was yes, so the case will proceed in appellate court.

REICHARD: Okay, opinions three and four are related disputes. The court threw out the fraud convictions of a former aide to Governor Andrew Cuomo and a contractor in Buffalo. This revolved around rigging bids for favored contractors. Governor’s aide Joseph Percoco argued he was not in power when he received payments. Contractor Louis Ciminelli argued he had not withheld financial information the way the government said he did. This does not end the matter. It simply returns the two cases to lower court for further proceedings.

EICHER: Final opinion today, this one 8-1. The justices decided against a Puerto Rican media organization that seeks documents from the board that oversees the island’s financial restructuring. The court found that territorial governments do have sovereign immunity and on that basis need not be subjected to a lawsuit seeking access to its records.

REICHARD: Only five oral arguments left this term to cover! But lots of opinions still to come. And that’s this week’s Legal Docket!

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