The “But I Didn’t Mean it That Way” Defense
Billy Counterman was obsessed with singer-songwriter Coles Whalen. For four years starting in 2014, Counterman Facebook messaged Whelan’s public and private accounts thousands of times.
Examples included “what do you fear?” and “Die. Don’t need you,” and “I’m currently unsupervised. I know, it freaks me out too.” In another message, he alluded to following and seeing Whalen in public.
Counterman was tried and convicted under Colorado’s stalking law, but Counterman’s appeal has made it all the way to the United States Supreme Court for First Amendment scrutiny. Americans enjoy free speech, but the First Amendment has its limits, including “true threats” of violence, which are not protected by the First Amendment.
But what is a “true threat” of violence? In the 2003 case, Virginia v. Black, the justices defined a true threat as statements where “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence” to a person or group of people.
“Expression of an intent” means that the speaker does not have to actually intend to carry out the threat, only that the statement expresses the intent to carry it out.
“True threats” can include statements that the speaker has absolutely no intention of carrying out, and may be incapable of carrying out (i.e. “I’m going to shoot you” when the speaker does not own nor have access to a gun or “We’re going to beat the hell out of you” when you are a 2022-2023 Ole Miss men’s athletic team).
“True Threats” are unconstitutional not because the speaker intends to carry out violence, but because the speaker says he intends to carry out violence.
The Counterman case dives into issues about what statements are, and what statements are not, threats of violence. Counterman never made a direct threat of any action toward Whalen. He never said he was going to come do anything to her. “Fuck off permanently,” one message said, another said “You’re not being good for human relations. Die. Don’t Need You.” These messages are creepy af, for sure, but Counterman never said anything that was an explicit threat of violence.
When the Colorado jury had to read between the lines, the Colorado stalking law instructed the jury that a “threat of violence” was any statement that an “objective, reasonable person would regard the statement as a threat of violence.” Whether or not “Fuck off permanently” is a “threat of violence” is determined by a hypothetical “reasonable person.”
Would a reasonable person, considering the hundreds of other messages and the entire situation, interpret that statement as “I want you to die and am going to take steps to make it happen”? Or would a reasonable person find that statement to be more of an insult, as opposed to a threat, as in “I want your career to dissolve, you go away from public fame forever”?
Chief Justice John Roberts found that the most threatening message was “You’re not being good for human relations. Die. Don’t need you.” Roberts pointed out that written messages often can be taken in multiple ways because written words do not have tone, volume, facial expressions, or other indications of meanings that come with spoken words: “[When speaking] you can convey that message in a hostile way, or in a way that’s sort of like, you know, ‘you’re dead to me’ kind of thing.”
Counterman’s case is at the Supreme Court because the jury was not allowed to consider what Counterman intended by making the statements. The jury was not allowed to consider what Counterman says he meant by “Fuck off permanently,” because under Colorado, Mississippi, and twenty-five other states, the speaker’s intent is irrelevant in stalking/threat cases.
At his criminal trial, Counterman asked the Court to let the jury consider his intent. He wanted to argue that he did not know that the messages could be considered threatening and, threating or not, he did not intend for the messages to be threatening to Whalen. The Colorado Court did not let Counterman assert those arguments because, under the Colorado law, the speaker’s intent is irrelevant – all that matters is whether or not a “reasonable person” found the statements to be a threat of violence.
Counterman argues that it is unconstitutional to put someone in jail when he did not intend to make a threat and to not even let him explain his intent to the jury.
If the Court agrees, then the stalking law in Mississippi and twenty-six other states will become unconstitutional. The Court can deny Counterman’s appeal and side with the states. The Court can take the middle ground – uphold the “reasonable person” law but find that even under that law the speaker is constitutionally entitled to explain his intent as a defense.
Counterman hopes that the hand that gives the gavel, gavels it for him.
Mitchell Driskell practices law with the Tannehill Carmean firm and has been an Oxford lawyer for twenty two years. You can call him at 662.236.9996 and email him at mitchell@tannehillcarmean.com. He practices criminal law, civil law and family law.
