A man convicted after sending upward of a million Facebook messages to a Denver musician was not using free speech protected by the First Amendment, and was instead making threats, the Court of Appeals decided on Thursday in rejecting a constitutional challenge to Colorado’s stalking law.

In upholding the conviction of Billy Raymond Counterman, a three-judge panel for the Court of Appeals applied recent state Supreme Court guidance for interpreting threats in the age of social media, as well as a basic recognition that perpetrators are able to easily target their victims online.

“Recent widely reported cases of online harassment and stalking of public figures – particularly of women – involve internet users who are ‘strangers to the victims’ granted previously unavailable access to their targets through social media,” wrote Judge Craig R. Welling in the panel’s July 22 opinion.

Beginning in 2014 when Counterman first sent a Facebook friend request to singer-songwriter Coles Whalen, she received messages from him that she deemed “weird’ and “creepy.” She did not respond to any of them, and blocked Counterman on multiple occasions.

Over the next two years, she grew fearful of Counterman and was worried about being hurt or killed after the messages kept coming.

“I miss you, only a couple physical sightings, you’ve been a picker upper for me more times than I can count,” one of them read. Another asked Whalen ominously: “Was that you in the white Jeep?”

Whalen “was too frightened to book shows because it meant we had to post online where we would be and at what time,” said one of Whalen’s friends and bandmates, according to Westword. “Coles became afraid to talk to people; she was anxious, unhappy, and constantly checking in with security.”

Police arrested Counterman in May 2016 and a jury subsequently convicted him of stalking. He received a sentence of four-and-a-half years in prison.

Counterman appealed his conviction, asserting the stalking law was used to punish his free speech. Under Colorado law, stalking can occur when a person repeatedly contacts, surveils or communicates with an individual in such a way that a reasonable person would feel serious emotional distress.

At issue was whether his messages to Whalen, which reportedly numbered over one million, constituted a “true threat” not shielded by the First Amendment.

“Mr. Counterman did not intend to make a threat or didn’t have knowledge that the communication would be perceived as a threat,” public defender Mackenzie Shields argued to the appellate judges. She added that Counterman’s messages were “overwhelmingly mild.”

In June 2020, the Colorado Supreme Court revised its standard for what constitutes threatening speech. The Court outlined specific factors to consider – like the medium, the relationship between the people involved and the reaction of the recipient – but emphasized that context also matters.

“In determining whether a statement is a true threat, a reviewing court must examine the words used, but it must also consider the context in which the statement was made,” wrote Justice Monica M. Márquez in the court’s opinion.

Although Counterman went to trial before the Court’s decision, the trial court judge in his case evaluated the Facebook messages along those lines. For example, Counterman wrote on one occasion that “Staying in cyber life is going to kill you. Come out for coffee. You have my number.”

Then-Arapahoe County District Court Judge F. Stephen Collins observed that a reader could interpret the message “in a couple different ways. I mean, one, it’s – it could be just expressing a concern to someone, but it also could be interpreted, given the totality of the circumstances, as an implied threat that if she stays in cyber life, she’s going to get killed. And I find that troublesome.”

A federally-funded study in 2009 noted that the intent of stalking laws is to protect victims from behaviors that are not criminal in isolation, but add up to unlawful abuse. Data from a 2006 survey found 20 out of 1,000 women had been victims of stalking, compared to seven out of 1,000 men.

The U.S. Supreme Court has established that true threats, meaning statements where someone communicates a serious intent to commit violence, do not have First Amendment protection. However, in 2015 a majority of the justices reversed a man’s conviction because prosecutors had not proven he knowingly threatened his wife with his online posts.

Attorneys Lyrissa Barnett Lidsky and Linda Riedemann Norbut have written about about how easy it is for outsiders to misconstrue statements, even violent ones, as true threats on social media. They advocate for the ability of alleged perpetrators to cite the context of the communications in their defense.

In evaluating the circumstances of Counterman’s communications, the appellate judges noted his messages were completely uninvited, given that Whalen never responded. Some of them implied that he wanted to see her dead, or that he felt an entitlement to interact with her. Counterman also sent Whalen messages privately, indicating that his remarks were only intended for her.

“Here, there are details that heighten the credibility of Counterman’s threats. The references to surveilling [Whalen] – particularly to seeing her with her partner or friend and the white Jeep – indicate that Counterman may have had a familiarity with [Whalen] gained from secretly watching her,” wrote Welling in the appellate panel’s opinion. “These details add to the threat implied in Counterman’s messages.”

The court also rejected the remaining claims in Counterman’s appeal. The case is People v. Counterman.