After the US Supreme Court made clear on Tuesday that a Colorado law criminalizing stalking does not take into account a defendant’s intent to make threatening comments, state policymakers suggested that legislation may be justified to balance the need to protect victims with the constitutional requirement to respect free speech. .
It’s also possible that the state supreme court would need to revisit its own precedent, which currently looks at the context of a person’s statements to determine if something is a “genuine threat” that isn’t deserving of First Amendment protection. By 7-2, the nation’s highest court found the objectively threatening nature of a person’s speech It cannot be the sole basis for conviction.
“From a political standpoint, while I value free speech, at some point it pays to send frequent letters to someone you hope they ‘die’ and propose,” said Rep. Stephen Woodrow, a member of the House Judiciary Committee. I’ve been watching them close to zero.”
“Whatever it is, this is the law of the country, and my colleagues and I seem to have work to do,” he added.
“In terms of what we’re doing, I think it’s premature to say we’re definitely going to change the law,” added Sen. Bob Gardner, Republican of Colorado Springs, who sits on the Senate Judiciary Committee. “I think we will.”
Supreme Court decision relating to the conviction of Arapahoe County Billy Raymond Counterman. For about two years, he had a one-way Facebook conversation with musician Coles Wallen. Although she repeatedly blocked Counterman, he continued to send messages that were at times benign, voyeuristic, and threatening.
“Was it you in the white jeep?” “I am currently uncensored. I know that scares me, too.” “Five years on Facebook. Just a few physical sightings.” “Die. I don’t need you.”
State Court of Appeal He upheld Conterman’s stalking convictionWhich requires proof that he contacted or communicated with Whalen repeatedly In a way that caused her serious emotional distress. The Court agreed that Counterman’s statements were not protected speech because they amounted to “genuine threats” not protected by the First Amendment.
However, the majority of the Supreme Court believed that prosecutors needed to show that Counterman not only made threatening statements, but had some awareness that he might cause serious distress to Wallen. Judge Elena Kagan Justified by the opinion of the majority And that the ability to sue someone based solely on how others view their statements “may lead them to swallow words that do not actually pose real threats.”
The Colorado State Attorney General’s office, which represented Conterman in his criminal case, was pleased with the majority’s guidance. Megan Ring, head of the office, described it as:ascertaining the protections afforded to citizens under the First Amendment.”
prosecutorsHowever, he cautioned that the intent clause may allow some stalkers to avoid accountability.
“This case will make it difficult to prosecute because when you have to show what’s on someone’s mind, you create an additional burden,” said Attorney General Phil Weiser. In a radio interview on Wednesday. He added that the decision “will require an amendment in Colorado.”
When the appeals court evaluated the Conterman case, it relied on a 2020 decision by the Colorado Supreme Court, People in the interest of RD This case, which also took place in Arapahoe County, involved threatening messages on social media between the teens, which allegedly amounted to harassment.
State judges acknowledged that the US Supreme Court had not yet required proof of a person’s intent, and refused to impose that requirement itself. Instead, the state Supreme Court instructed the justices to consider the context of the defendant’s comments to determine whether they represented genuine threats not protected by the First Amendment.
Dissenting the US Supreme Court’s decision, Justice Amy Coney Barrett called the RD test a “good example” of how to distinguish real threats from protected speech.
However, thanks to majority opinion, “this test is no longer valid” for speech-based crimes, said Ian P. Farrell, associate professor of criminal law at the University of Denver.
McKenzie R. Shields, the attorney general who has represented Counterman in Colorado, agreed that the state Supreme Court’s multifactorial test of real threats must take into account the new proof of intent requirement.
She said: “All of these considerations are still valuable, but freedom of expression is much more important than imprisoning people for statements that are in the most negligent manner.” Together with the factors set forth in Research and development“A real threat would now also require the prosecution to prove the speaker’s mental state, as happens in most cases.”
Although prosecutors could have proven that Counterman acted recklessly by continuing to contact Whalen after she blocked him, the person accused of stalking might also claim his threatening actions were a “joke” to avoid consequences, Emily Toft Nestafal warned. , which leads the investigation. Rocky Mountain Victims Law Center.
Some members of the General Assembly indicated that they would consider state laws criminalizing threats in order to address both the Attorney General’s and Supreme Court’s concerns.
“I believe the court’s ruling may create a dangerous gap in protections for stalking victims in Colorado,” said Senator Dylan Roberts, a member of the Senate Judiciary Committee. “To that end, there may be a way to amend the relevant Colorado law to provide more protection for victims but also to be consistent with the court’s ruling.”