Colorado-based Supreme Court decision raises standard to prosecute stalking cases

WASHINGTON D.C. (KRDO)-- A United States Supreme Court ruling handed down this week involving a Colorado man could alter the way stalking charges are brought in the future.

The case dates back to 2014 when a man based out of Arapahoe County was convicted on stalking charges. Billy Counterman was accused of sending hundreds of Facebook messages, some abusive, to Colorado musician Whalen Coles.

The Supreme Court ruled 7-2 Tuesday in favor of Counterman against the State of Colorado. The court ruled the state was wrong, and Counterman's actions are protected under the First Amendment, as long as he didn't mean to be threatening.

"Now, defendants have a chance to basically get away with a loophole, where they can say, "I didn't mean anything by it,"' Colorado Attorney General Phil Weiser told KRDO Wednesday. Weiser believes the ruling could stretch past stalking allegations too.

"Anyone who is engaging in threatening behavior, who is making statements that cause harm now could potentially benefit from this loophole," Wesier said.

Coles' sister, Marita, spoke with ABC earlier in the year, saying Counterman's messages had a profound effect on the musician.

"There were messages where Mr. Counterman would reference details about where she had been or the vehicle she was driving, who she was hanging out with," Coles said, adding her sister got a permit to arm herself, fearing Counterman.

Counterman's lawyer maintains that the state had no evidence he ever spied on her.

But the Supreme Court ruling, delivered by Justice Elena Kagan, says the jury should have been required to make a finding about whether Counterman intended his comments to be genuine threats. 

"Stalking is already underreported and under-prosecuted as a crime before this decision," Weiser adds.

However free speech advocates say this case is not about how frequently Counterman wrote, but more so the content that should be protected.

"They are very clear that jest, hyperbole, and those kinds of things are not going to be true threats," Ronnie London, council with the Foundation for Individual Rights and Expression (FIRE) said. London and Fire applauded the decision, saying it ensures that speakers must have awareness.

Ronnie London with the Foundation for Individual Rights and Expression says this case follows the first amendment, protecting free speech, and ensuring there has to be subjective awareness in the mind of the speaker.

"The speaker must actually consider in their own mind that other people would construe it as a threat, and then decide to proceed.

But Weiser says that's going to make it very hard to prosecute legitimate stalkers and others who make threats.

"This decision takes more seriously the so-called threatening speech of stalkers than it does harm to victims. That's really unfortunate, and I don't believe the type of speech here is the type of speech the First Amendment is designed to protect."

Now, the case returns to lower courts where they'll decide if the conviction should be thrown out.