‘True Threats,’ Insanity, and the Supreme Court
Is a threat in the eye of the receiver or the issuer?
NPR’s Nina Totenberg (“The Supreme Court ponders when a threat is really a ‘true threat’“):
The Supreme Court on Wednesday revisits a question the court has never answered: When is a threat a “true threat?” What does the prosecution have to prove? Does it have to show that the defendant intended to frighten his target, or is it enough to show that his words would have that effect on a reasonable person?
The case involves Coles Whalen, a singer-songwriter from Colorado, and Billy Counterman, a man convicted and sentenced to four-and-a-half years in prison for “stalking” Whalen and making “true threats” against her.
While I’m not familiar with Whalen’s oeuvre, her case is alarming:
Counterman’s messages to Whalen began in 2010 and heated up to a full boil in 2014, when police estimate he sent over a thousand messages to the singer — messages that ranged from affectionate to angry and aggressive, and gave the impression he was watching her.
“He was clearly mentally unstable,” Whalen said in an interview with NPR. “He believed that we were in a romantic relationship that lasted a number of years. He indicated that he was seeing me in person without me knowing it. And I was terrified.”
At one point, Counterman inquired about her mother after Whalen had just paid her mom a visit. At another, he wrote, “Die. Don’t need you,” and in another message he wrote, “I’m currently unsupervised. I know, it freaks me out too.”
Whalen repeatedly blocked him from her Facebook account, but he would create new accounts, even contacting her bandmates about her. She became so scared that he would emerge from a crowd, potentially lunging at her on stage, that she stopped publicizing her appearances, varied her routes, hired a body guard on one occasion and bought a pepper spray gun that she keeps with her to this day.
Whalen’s anxiety escalated further when she learned that Counterman had served two jail terms for far more explicitly violent threats against his ex-wife and family. But even after he was arrested, her fear persisted. Her first panic attack came in Dallas, when she was performing in front of about 300 people.
“I thought I might be having a heart attack … and I had to leave the stage, which I’ve never done in all my years performing,” Whalen said. “When I went backstage, I mean, I just sobbed for an hour. I felt so horrible. I thought, maybe this isn’t worth it. Maybe I shouldn’t continue.”
Now, I’m not sure how much the criminal law should concern it with the state of Whalen’s emotions. But the notion that she wasn’t justified in taking these actions are a true threat is absurd. Alas, that’s not the question before the Court.
The legal issues in Wednesday’s case are bloodless compared to Whalen’s story. The First Amendment protects freedom of speech, but there are exceptions — obscenity, fighting words, shouting “fire” in a crowded theater and what the court has called “true threats.” The question in this case is whether the definition of a “true threat” is in the eye of the ordinary, reasonable beholder or in the eye of the writer of the messages.
Lawyer John Elwood, who is representing Counterman in the Supreme Court, points out that his client has been diagnosed with a mental illness and didn’t know that he was frightening Whalen.
As dramatic as this case is, it strikes me as a poor one for settling this question. Unless the assumption is that most people making threats are mentally ill and have a limited understanding of how a normal person would perceive their communications, Counterman’s mental state clouds the case considerably. Even Whalen acknowledges that “He was clearly mentally unstable.” That seems a weird basis for the Supreme Court deciding on a controlling legal doctrine.
“A ‘true threat’ standard that considers the speaker’s intent is necessary to avoid criminalizing inevitable misunderstandings,” he wrote in his brief. To illustrate the point, he notes that if you hit someone accidentally, you may bruise that person, but that’s not a crime. But if you hit someone on purpose, that is a crime.
Noting that early English and American decisions required proof of the speaker’s intent, Elwood argues that in the internet age, “words on the screen are divorced from context.”
The First Amendment, he contends, doesn’t allow the state to punish a person based on what a reasonable person receiving a message might think. The question is what the speaker intends.
That strikes me as facially absurd. It’s next to impossible to prove intent. Further, it would seem to very much matter how the person on the receiving end would reasonably perceive the communication. So, the “reasonable person” standard seems the obvious benchmark.
That argument is supported by a variety of civil liberties groups. The Reporters Committee for Freedom of the Press, for instance, points to several examples of journalists being charged under stalking laws for leaving voicemail messages for public officials or approaching them at home to get responses for stories.
That strikes me as a red herring. While I’m not a fan of aggressive reporters following people home, that’s simply a different matter than we’re looking at in this case.
The ACLU argues that political hyperbole can often be mistaken for a genuine threat. Without a demonstration of intent, the organization argues, “one person’s opprobrium may be another’s threat.” It adds that the fact that many of these statements occur online “underscores the need for a subjective intent requirement.”
This, however, is a perfectly valid point. While I’m by no means a fan, there’s a long history of violent messaging in American political speech. But, again, this is a very different thing. Whalen is not a politician. And, while a single communication might well be misconstrued, hundreds, or thousands in this case, surely present a pattern that a jury can evaluate.
Colorado Attorney General Philip Weiser counters that under Colorado law, the question is whether an objective person in the situation of the victim would feel threatened. And, he notes, that’s what the trial was about in the Counterman case.
“Since the founding of the Republic, we’ve had threat statutes that have allowed the prosecution of threats without regard to the specific intent of the person making the threats,” Weiser said, in an interview with NPR.
Again, this seems perfectly reasonable. Unless there’s a wave of prosecutors using these laws to harass innocents, the matter of intent should be within the purview of the jury.
I’m not quite sure what to do with this, though:
He points to briefs filed by victims’ rights organizations and studies showing that, for the victim, the psychological effects of threatening behavior is frequently far worse than an actual assault.
“We live in a time of rising demonization and threats of physical violence and actual physical violence,” Weiser said. “It’s important that the law be able to respond.”
Indeed, in the aftermath of the Supreme Court’s abortion decision, the justices themselves have experienced a large increase in threats.
As for Whalen, even after Counterman’s conviction, she couldn’t shake her fear.
“I truly expected to get back out there and be the same me, the old me, that had been performing all these years,” she said. “A great shock to me was to learn that I was not that person anymore, and I was going to have to find another way to perform as this new person that I had become through this traumatic experience.”
Initially, she gave up performing, moved far away, found a great therapist, got married and had two children. She has now clawed her way back psychologically to performing again, though sometimes tremulously.
It’s truly a shame that she was so traumatized but that seems more a matter for a civil lawsuit than the criminal justice system. Still, law enforcement ought to be able to protect people from stalkers, regardless of their mental state.
I’m quite sure misogynistic scumbags Thomas and Kavanaugh are sympathetic to the stalker. And Amy Coney Barrett no doubt believes Whalen should have just succumbed to Counterman’s advances like a good puritanical handmaid should.
I have no doubt that this absolutely illegitimate SCOTUS will see Counterman as the victim and protect him.
@daryl and his brother darryl: I’m continually amazed that Chief Justice Roberts wants this to be “his” court’s legacy. He seems like a bit of a centrist, but clearly that’s just a front to attempt to legitimize a corrupt court.
History will not be kind to Mr. Roberts.
If there was mental illness involved, why was not civil commitment and treatment an option?
Otherwise, I don’t think the question is answerable. There are parts of the law that cannot be entirely defined. It requires, for better or worse, judgement. And wisdom. And no, not everyone will be happy.
@daryl and his brother darryl: @Tony W: This is just tiresome. Not every issue comes down to partisanship or ideology. There’s an argument—supported by the ACLU, no less—being advanced that the intent of the issuer of the perceived threat has to be taken into account. I’m dubious of that argument but it’s not a partisan one.
The entire framing of this issue is bizarre: no one is attempting to block Counterman’s ability to discuss Whalen with the general public, it’s about him attempting to communicate with a specific person that has made it clear they’re not interested in listening to Counterman’s message.
The first amendment does not create a right to force particular people to listen to you.
@James Joyner: “This is just tiresome. Not every issue comes down to partisanship or ideology. ”
Yes, the Federalist Society is tiresome. And has forfeited all benefit of the doubt.
My comment was based on the past history and stated opinions of specific judges, not on a partisan or ideological basis.
Both Thomas and Kavanaugh are both credibly accused of sexual harassment and/or sexual assault and Barrett is, or was, a member of the charismatic religious group People of Praise, which preaches women’s subordination to men.
Schedule an appearance in a stand your ground state, blow him away, problem solved.
It is striking that the timing juxtaposes SCOTUS consideration of “true threat” with the recent of news of the death of Kaylin Gillis (shot when the car she was in used someone’s driveway to turn around) and the shooting of Ralph Yarl (who rang a doorbell as a black teenager). The gun fetishist world view sees threat everywhere – it’s being drummed into them that being armed is all that stands between them and certain death.
How will the shoot-first view of threat for 2nd Amendment maximalists interplay with the true-threat-before-arrest view for 1st Amendment maximalists? Should be interesting to see how it plays out.
We, as a society, and particularly the criminal “justice” system, don’t deal well with mental health issues. What should happen is for Counterman to be institutionalized or otherwise restrained while undergoing treatment. That apparently won’t happen and there is no reason Whalen should bear the burden of it. Has his attorney offered any reason to think he won’t continue his behavior if not jailed?
This whole business of criminal intent is a contradiction at the heart of our system. His lawyer offers the example of accidentally hitting someone. Inadvertence can be a defense without invoking unknown and unknowable intent. The guy did in fact stalk and harass the woman for years. It obviously wasn’t inadvertent. He obviously did, repeatedly, the crime. He did the crime, he’s a criminal. End of story. Punish him to stop him and to deter others. What’s intent got to do with it?
My Pragmatist rant for the day.
@Barry: I have no reason to think the Federalist Society is trying to change the law on this issue. Indeed, the most recent case addressing something like this issue was very much divided along partisan lines.
@daryl and his brother darryl: I think it’s fair to think Thomas and Kavanaugh would be unsympathetic to claims of harassment. But the facts in the case are not in dispute. This isn’t he said/she said.
Well, we used to be able to, back in the bad old days. However, since the days of St. Ronnie, civil commitment is nearly impossible without a direct threat of violence against self or others. Nothing else will serve except him going off on her – unless she lashes out in response. In which case she’ll be castigated for her unseemly violence.
Stalking is not a rational act. “I may face a civil suit” is not, it seems to me, much of a deterrent to an irrational person.
OTOH, “They will put me in a cage” is something that a stalker will probably hear unless they are completely divorced from reality.
Stalking is a cruel, brutal, and sometimes fatal experience for its victims. We really need to do a better job helping it’s victims.
@Flat Earth Luddite:
It’s a bit more complicated than that, though Reagan did play a part.
As it is with many things, the core problem is money. Our society, at this point, has enough – or at least close to enough – understanding of mental health issues to take a productive approach to them. What we don’t have is adequate funding.
Someone close to me has profound mental health issues, so I’ve seen the inside of psych hospitals and have an up-close view of the pitifully underfunded public mental health system – and I’m in a high-wealth area in the bluest of blue states. I shudder to think what it’s like elsewhere.
@anjin-san: I fully agree that there’s a level of stalking that should be criminal and that this is far over that level. I’m just saying that the level of emotional distress the victim faced per se is a civil matter. Criminal law punishes people for action, whereas civil law provides compensation for pain and suffering.
We have an insanity defense in every state, I believe. It generally requires the defendant to show that they were not capable of understanding that their actions were wrong. It’s very narrow, and typically involves the state requiring the defendant to get mental health care.
I think that settles all the complexity around the stalker’s mental state.
The “reasonable person” standard is pretty straightforward and a bit deliberately fuzzy. If the prosecution can prove that a reasonable person would take this as a threat to a jury of 12, that’s a pretty high bar.
(It’s also higher than the standard in a murder case. We don’t ask if a reasonably healthy person would have been killed, we look entirely at the impact on the victim.)
I do wonder what the Supreme Court wants to use this case for — the case seems pretty straightforward and well decided. Four justices voted to hear this case, and they have some goal in mind.
Thanks for the clarification. My guess is that most stalking victims are thinking, “just keep them away from me” not “I need to get some money for this”.
Being persistently and aggressively stalked like this, with threats, is scary AF. Women have to worry about stuff like this ALL THE TIME. I was taught to carry my keys interlaced between my fingers to use as a weapon. To always check under my car before getting close enough to it to unlock the door. And on, and on.
Angry and aggressive calls is threatening–that sounds criminal to me. This went on so long she developed panic attacks. This jackass’s behavior induced a medical condition.
@Gustopher: I think we’ll be able to find out what was on their minds in a few months.
I had to reread the article a couple of times, but if I understand this situation correctly, the crazy dude, in this case, did everything online through various online media and communications. The crazy dude didn’t AFAICT, go to her concerts, her home, call her on the phone, etc.
I can see why the SCOTUS might be interested in this case, especially after glancing at the history of related rulings.
Also, I think the commenters who self-assuredly declare that some justices will side with this online stalker because they are bad people are perhaps premature. In a similar case in 2015, the court sided with the perpetrator 8-1 (Thomas the lone dissenter), but that wasn’t decided on 1st amendment grounds.
The WAPO also has a story (better than the NPR one, I think) which says, in part:
Looks like she is getting her wish.
“Now, I’m not sure how much the criminal law should concern it with the state of Whalen’s emotions.”
Why do we see physical harm and mental/emotional harm so dramatically different?
@Kazzy: I assume that it’s because we all muy mas macho and would never EVER let ourselves be intimidated by mere emails.
I think that’s an oversimplification. Check out the definition of (criminal) assault — no actual physical attack is required. So where is the line?
The uncomfortable fact is that threat is neither entirely in the eye of the beholder nor entirely in the intent of the perp, neither of which is accessible to the legal system. It is also very context dependent, and asymmetric — the same behavior from a large strong person toward a small weak person might well be “true threat” when the converse would not.
@Andy: A key difference between the Perez case and that Perez did not keep it up for four years and thousands of messages.
Is Perez serving too long for a drunken prank? Maybe. Probably even.
On the other hand, I don’t have a lot of sympathy for drunken assholes being loud, aggressive and threatening, so if I were to prioritize the injustices in the world that need to be addressed, he wouldn’t be very high on the list.
This case is about someone harassing a woman for years. I don’t see any reason to look into whether this guy was improperly convicted unless someone wants to make years of harassment a protected activity. Seems like a mistake. Stepping away from a reasonable person standard would just embolden complete shitheads who want to ride right up to the line.
I’d argue that we give assholes far too much freedom to be force their assholery on others as it is.
An excellent point. The damage from stalking can take a lot of forms. One of my all-time favorite restaurant customers moved to LA to escape a stalker. It was not something she wanted to do, and her mother had to move as well – they were very close. So both their lives were taken away from them in a very real sense.
She was a sweet, smart, pretty, successful woman who was very devoted to her mother – really a delight to be around. Everyone who knew her lost a little something when she left.
This was before the Internet age. Women today can’t escape a determined stalker by moving 500 miles.
@Just nutha: @Kazzy: @DrDaveT: Stalking, harassment, and assault are all crimes because of the emotional distress they cause. My point is that Totenberg continued to go into great detail about just how stressful it was for the victim and I don’t know that the criminal law should get into that, since it’s largely unpredictable how a threat is going to impact another. Society should be protecting her from threats. The tort system is about damages.
And Perez still got 15 years.
I agree with your sentiment in theory, but operationalizing that isn’t simple or easy. Many people (maybe even most people) act like assholes, at least sometimes. Where you draw the line for defining criminal conduct matters, and the details matter greatly.
That said, I’m skeptical of redefining away from the “reasonable person” standard in either direction, but the arguments presented in this case could sway me one way or another.
If I swing a bat and it hits someone in the head and they die, am I charged with a different crime than if I swing a bat and it hits someone in the head and they merely suffer a bump? What if I swing a bat and it merely grazes someone’s head?
We consider both the act and effect when punishing people for physical violence. Your argument seems to be that we should not do the same when punishing people for emotional or mental violence (if we punish them at all).
Everyone perceives threats differently. People frequently perceive a threat where none actually exists.
I’m reminded of a line that I saw in a novel recently:
Color me skeptical about this whole society protecting people from threats thing.