Note on Stalking Statutes and the First Amendment

Colorado, like many states, has implemented statutes that attempt to solve the problem created in cases like Rizzo and Jackson. Rather than attempting to determine when the line has been crossed from preparation to attempt, they criminalize conduct that clearly falls short of an attmept.

In Counterman v. Colorado, the defendant was charged under 602(1)(c) with repeatedly sending threatening messages to the victim from multiple facebook accounts:

From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. never responded. In fact, she repeatedly blocked Counterman. But each time, he created a new Facebook account and resumed his contacts. Some of his messages were utterly prosaic (“Good morning sweetheart”; “I am going to the store would you like anything?”)—except that they were coming from a total stranger. Others suggested that Counterman might be surveilling C. W. He asked “[w]as that you in the white Jeep?”; referenced “[a] fine display with your partner”; and noted “a couple [of] physical sightings.” And most critically, a number expressed anger at C. W. and envisaged harm befalling her: “Fuck off permanently.” “Staying in cyber life is going to kill you.” Ibid. “You’re not being good for human relations. Die.”

The messages put C. W. in fear and upended her daily existence. She believed that Counterman was “threat[ening her] life”; “was very fearful that he was following” her; and was “afraid [she] would get hurt.” As a result, she had “a lot of trouble sleeping” and suffered from severe anxiety. She stopped walking alone, declined social engagements, and canceled some of her performances, though doing so caused her financial strain.Eventually, C. W. decided that she had to contact the authorities. 

Colorado charged Counterman under a statute making it unlawful to “[r]epeatedly . . . make[ ] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. §18–3–602(1)(c) (2022). The only evidence the State proposed to introduce at trial were his Facebook messages.

What crime could Counterman be charged with attempting? Assault? Murder? Does he have either the mens rea (as we'll see in the next section, intent) or the actus reus of attempting to commit those crimes? Notwithstanding these difficulties, one can completely understand why CW would be placed in fear by his messages and why Colorado would seek to punish him criminally for making them.

Counterman was convicted under the Colorado stalking statute and on appeal renewed the First Amendment objection to the statute that he had made at trial: He argued that without proof that he had a "subjective intent to threaten" the statute impermissibly chilled constitutionally protected speech.

What mens rea is required by the words of the statute? Is there any?

The Supreme Court ultimately agreed with Counterman's constitutional argument, in part. While holding that some subjective mens rea was required to avoid constitutional concerns, they rejected his argument that the required mental state was intent. Rather, the Court held, it must be shown that the defendant was at least reckless with regard to whether his comments would be perceived as a threat. 

If the government chose to retry Counterman, what will it have to prove? Do you think it will be able to do so? Does this uncertainty defeat the solution that Colorado sought to find to the problem of punishing pre-attempt conduct?