Examples included \u201cwhat do you fear?\u201d and \u201cDie. Don\u2019t need you,\u201d and \u201cI\u2019m currently unsupervised. I know, it freaks me out too.\u201d In another message, he alluded to following and seeing Whalen in public.<\/p>\n\n\n\n
Counterman was tried and convicted under Colorado<\/strong>\u2019s stalking law, but Counterman\u2019s appeal has made it all the way to the United States Supreme Court<\/strong> for First Amendment<\/strong> scrutiny. Americans enjoy free speech, but the First Amendment has its limits, including \u201ctrue threats\u201d of violence, which are not protected by the First Amendment.<\/p>\n\n\n\n But what is a \u201ctrue threat\u201d of violence? In the 2003 case, Virginia v. Black<\/strong>, the justices defined a true threat as statements where \u201cthe speaker means to communicate a serious expression of an intent to commit an act of unlawful violence\u201d to a person or group of people.<\/p>\n\n\n\n \u201cExpression of an intent\u201d 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.<\/p>\n\n\n\n \u201cTrue threats\u201d can include statements that the speaker has absolutely no intention of carrying out, and may be incapable of carrying out (i.e. \u201cI\u2019m going to shoot you\u201d when the speaker does not own nor have access to a gun or \u201cWe\u2019re going to beat the hell out of you\u201d when you are a 2022-2023 Ole Miss<\/strong> men\u2019s athletic team).<\/p>\n\n\n\n \u201cTrue Threats\u201d are unconstitutional not because the speaker intends to carry out violence, but because the speaker says he intends to carry out violence.<\/p>\n\n\n\n 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. \u201cFuck off permanently,\u201d one message said, another said \u201cYou\u2019re not being good for human relations. Die. Don\u2019t Need You.\u201d These messages are creepy af, for sure, but Counterman never said anything that was an explicit threat of violence.<\/p>\n\n\n\n When the Colorado jury had to read between the lines, the Colorado stalking law instructed the jury that a \u201cthreat of violence\u201d was any statement that an \u201cobjective, reasonable person would regard the statement as a threat of violence.\u201d Whether or not \u201cFuck off permanently\u201d is a \u201cthreat of violence\u201d is determined by a hypothetical \u201creasonable person.\u201d<\/p>\n\n\n\n Would a reasonable person, considering the hundreds of other messages and the entire situation, interpret that statement as \u201cI want you to die and am going to take steps to make it happen\u201d? Or would a reasonable person find that statement to be more of an insult, as opposed to a threat, as in \u201cI want your career to dissolve, you go away from public fame forever\u201d?<\/p>\n\n\n\n Chief Justice John Roberts<\/strong> found that the most threatening message was \u201cYou\u2019re not being good for human relations. Die. Don\u2019t need you.\u201d 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: \u201c[When speaking] you can convey that message in a hostile way, or in a way that\u2019s sort of like, you know, \u2018you\u2019re dead to me\u2019 kind of thing.\u201d<\/p>\n\n\n\n Counterman\u2019s 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 \u201cFuck off permanently,\u201d because under Colorado, Mississippi<\/strong>, and twenty-five other states, the speaker\u2019s intent is irrelevant in stalking\/threat cases.<\/p>\n\n\n\n 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\u2019s intent is irrelevant \u2013 all that matters is whether or not a \u201creasonable person\u201d found the statements to be a threat of violence.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n If the Court agrees, then the stalking law in Mississippi and twenty-six other states will become unconstitutional. The Court can deny Counterman\u2019s appeal and side with the states. The Court can take the middle ground \u2013 uphold the \u201creasonable person\u201d law but find that even under that law the speaker is constitutionally entitled to explain his intent as a defense.<\/p>\n\n\n\n Counterman hopes that the hand that gives the gavel, gavels it for him.<\/p>\n\n\n\n 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.<\/em><\/p>\n\n\n\n The \u201cBut I Didn\u2019t Mean it That Way\u201d Defense Billy Counterman was obsessed with singer-songwriter Coles Whalen. For<\/p>\n","protected":false},"author":123458,"featured_media":114720,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[18405],"tags":[19411,25381,25382,5,18283,4,22709],"class_list":["post-128825","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-mitchell-driskell","tag-barstool-briefs","tag-billy-counterman","tag-coles-whalen","tag-mississippi","tag-mitchell-driskell","tag-oxford","tag-short-stories-on-legal-affairs"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/www.thelocalvoice.net\/oxford\/wp-content\/uploads\/2021\/10\/MitchellDriskell-columnHeader-03.jpg?fit=996%2C504&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.thelocalvoice.net\/oxford\/wp-json\/wp\/v2\/posts\/128825","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.thelocalvoice.net\/oxford\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.thelocalvoice.net\/oxford\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.thelocalvoice.net\/oxford\/wp-json\/wp\/v2\/users\/123458"}],"replies":[{"embeddable":true,"href":"https:\/\/www.thelocalvoice.net\/oxford\/wp-json\/wp\/v2\/comments?post=128825"}],"version-history":[{"count":0,"href":"https:\/\/www.thelocalvoice.net\/oxford\/wp-json\/wp\/v2\/posts\/128825\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.thelocalvoice.net\/oxford\/wp-json\/wp\/v2\/media\/114720"}],"wp:attachment":[{"href":"https:\/\/www.thelocalvoice.net\/oxford\/wp-json\/wp\/v2\/media?parent=128825"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.thelocalvoice.net\/oxford\/wp-json\/wp\/v2\/categories?post=128825"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.thelocalvoice.net\/oxford\/wp-json\/wp\/v2\/tags?post=128825"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}![\"\"](\"https:\/\/i0.wp.com\/www.thelocalvoice.net\/oxford\/wp-content\/uploads\/2014\/06\/TheLocalVoiceLigature-25web.jpg\")
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