What Constitutes a Threat Amidst Stalking on Facebook?

Source: "Shutterstock," SpeedKingz

The Supreme Court will decide in June what constitutes threats, particularly in the context of stalking as the two are often intertwined. The issue here revolves around intent: Is a statement a threat only if the speaker intends it to be? Conversely, can a message threaten the listener even if the speaker didn't intend it that way? The Supreme Court may determine that a true threat is assessed by whether a reasonable person would feel threatened by the statement. Messages deemed not "true threats" are classified as protected speech under the First Amendment and thus free of intervention.

In the case of Counterman v. Colorado, the Court will determine whether a threat is defined by the perpetrator's intent or how the victim perceived it. This ruling is important as threats and stalking often accompany each other and are reportedly rising. The Court could decide that threats should be viewed solely from the speaker's perspective. In that case, a dangerous precedent will be set rendering laws impotent to protect countless individuals from being endlessly pursued and harassed by someone who claims they didn't intend to threaten or stalk them. Moreover, those victimized cite multiple life-changing effects from these crimes, including mood, anxiety, and posttraumatic stress symptoms that require psychological treatment.

The Facts: Counterman v. Colorado

In 2014, singer-songwriter Cole Whalen accepted a seemingly innocent Facebook friend request from Billy Counterman, a stranger to her. Counterman then began sending an increasingly alarming series of messages to Whalen. Over two years, he suggested he was tracking her movements, even asking her at one point, "Was that you in the white Jeep?" Whalen never responded to any of Counterman's statements. He criticized her often, suggesting she was arrogant, telling her, "You're not being good for human relations. Die. Don't need you."

Whalen attempted to block him; however, he would make a new account and continue to contact her. He seemed to be under the distorted impression that he was in a relationship with her despite never having met or had any correspondence. Whalen became increasingly terrified of Counterman, claiming his messages derailed her life and musical career. She reported that she began having panic attacks and suffering severe emotional distress, paralyzed by the fear that he would show up at her concerts. Whalen filed for a restraining order and canceled her appearances, taking his request that she "die" as a threat. A court agreed, finding that the context of the messages and Counterman's constant harassment of her, particularly after she blocked him, made them unquestionably threatening and found him guilty of stalking. He was subsequently sentenced to 4.5 years in prison, and this decision was upheld on appeal, prompting him to ask the Supreme Court to intervene.

Counterman now claims that he was erroneously convicted of stalking based on Colorado's overly broad definition of a threat. He maintains that his Facebook messages were not intended to cause Whalen fear or psychological harm and therefore are not legally actionable. His lawyers argue that if Counterman didn't intend to threaten Whalen, his statements didn't rise to the requisite level of a crime, and his conviction for stalking was unconstitutional. However, the state of Colorado defends its decision to find Counterman guilty because it argues that it should be sufficient for a reasonable person to interpret these messages as threatening in the context in which they were made — regardless of the intent behind them.

The Prevalence of Stalking and Threats

Stalking and its subsequent victimization through threats are becoming commonplace statistically:

• Approximately 1 million women and 370,000 men are stalked annually in the United States.
• Women are three times more likely to be stalked than raped.
• 75% of stalking victims are women.
• Stalking persists for an extended period, on average, almost two years.

The Psychological Effects of Stalking and Threats on Victims

One of the most common techniques stalkers use is invading the victim's life. Given the intrusive nature of stalking behaviors and the extended period during which this crime persists, victims typically experience various psychological effects ranging from subclinical to acute psychiatric disorders. Stalking and threats victims report the following symptomology:

• General disturbance (posttraumatic stress)
• Affective disturbance (anxiety, paranoia, stress, anger)
• Cognitive disturbance (suicidal ideation, loss of self-esteem, confusion)
• Physical disturbance (somatic symptoms, sleep impairment, eating disorders)
• Resource disturbance (negative occupational impact, spending money on home security, time lost from work)

Many victims have reported becoming:

• Highly distrustful or suspicious (44%)
• Fearful (42%)
• Nervous (33%)
• Angry (27%)
• Paranoid (36%)
• Depressed (21%)

In general, victims have elevated scores on the Trauma Symptoms Checklist. The most robust association between stalking, threats, and victimization is major depressive and panic disorder. Further, stalking victims have a higher incidence of mental diseases and comorbid illnesses than those not subjected to it. These crimes also contribute to posttraumatic stress disorder, and victims report greater use of psychotropic medications. Stalking and threats laws exist to protect victims from the pervasive intrusion of one's psyche that these crimes entail. They render victims powerless, terrified, and paralyzed with fear. To eradicate legislation aimed at prosecuting these cases leaves victims open to abuse with little recourse.

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Conclusion

The Supreme Court will now decide if Counterman's Facebook messages to Whalen constitute true threats, thereby upholding the state of Colorado's findings as constitutional. If the Court focuses primarily on the speaker's intent instead of the victim's perception, or at least a reasonable person's, this raises considerable concerns regarding precedent. Stalking laws were enacted to protect victims like Whalen from disturbing behavior even when the perpetrator made subtle or no explicit threats. If the Supreme Court were to prevent the law from intervening unless the stalker uses specific words revealing their intent, it misunderstands the harm sought to be contained in the first place. The practical effect here could be to end up protecting stalking and threats violators, which is a tragic outcome.