The Colorado Supreme Court confirmed on Monday that a 2023 ruling from the nation’s highest court imposing a higher burden on stalking prosecutions does not apply to cases where the alleged stalker’s conduct, not the words he uses, is the problem.

The U.S. Supreme Court handed down its ruling in Counterman v. Colorado two years ago, in a case out of Arapahoe County involving a man convicted of stalking when he deluged a musician with messages both benign and disturbing. The majority determined Colorado could not find the defendant guilty solely if a person could deem his messages objectively threatening.

Instead, to prevent a First Amendment violation and avoid criminalizing non-threatening speech, prosecutors also need to show an alleged stalker’s recklessness — meaning he “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

Since Counterman, however, some trial judges have believed any case in which an alleged stalker communicates with his victim requires prosecutors to prove the defendant’s harmful intent, even if the content of the speech is not at issue. In its May 12 opinion, the state Supreme Court clarified those scenarios do not trigger Counterman‘s safeguard for free speech.

There is “an important distinction between prosecuting the frequency of contacts and the content of contacts; any evidence proving that alleged criminal contacts occurred does not automatically create First Amendment protections for such contacts,” wrote Justice Melissa Hart. “If the jury hears about the content but is not being asked to convict based on the content, the First Amendment is not offended.”

Colorado law outlines different methods of committing stalking. A person is guilty if they cause their victim to suffer serious emotional distress by repeatedly

• Following

• Approaching

• Contacting

• Placing them under surveillance

• Making any form of communication

In Jefferson County, David Samuel Crawford stands accused of two counts of stalking. Allegedly, his ex-girlfriend broke off their relationship in 2018 and relocated from Florida to Colorado. Despite efforts to block communication with Crawford, he allegedly sent numerous emails and phone messages in the ensuing years, along with various gifts. The woman told Crawford to stop, and said she was scared for her life thinking Crawford would show up unannounced.

On May 4, 2023, the woman returned to her Arvada home and allegedly saw Crawford standing in her front yard staring into her living room. Police arrested him.

Crawford faces one charge based on his contacts, and a second charge based on following, approaching or surveilling the victim. The defense moved to dismiss the case, arguing Colorado’s stalking law was unconstitutional as applied to him and generally.

Prosecutors maintained they had no intention of using the contents of Crawford’s communications to prove stalking. Instead, it was his repeated, unwanted contacts of the victim, unrelated to his speech, they wanted to pursue.

In February 2024, District Court Judge Diego G. Hunt heard arguments from both sides. Although the district attorney’s office acknowledged it “corrected the charges” to avoid prosecuting Crawford for his speech, Hunt believed there still needed to be proof of Crawford’s mental state.

“It is, nevertheless, because the conduct implicates speech, then you would need to demonstrate that the defendant in this case acted with reckless disregard,” he said.

“Understood,” responded Deputy District Attorney Riley Gonya.

On the first day of trial in July, prior to bringing in the jury, Hunt reiterated his belief that to the extent prosecutors were arguing Crawford’s contacts constituted stalking, “the defense is entitled to the instruction concerning the recklessness of the defendant’s state of mind.”

Gonya responded that Hunt’s directive represented “a change in the court’s ruling,” and argued Crawford’s repeated contacts with the victim were separate from the content of his communications — which were not the basis for the stalking charges.

“Although they’re being framed as contacts,” Hunt replied, “the contacts that we’re talking about are emails and text messages, which necessarily implicates speech, which necessarily implicate the First Amendment.”

The prosecution then sought the Supreme Court’s intervention, maintaining its plan was to specifically argue jurors could not convict Crawford for what he said, only for his pattern of showing up and contacting the victim.

While the case was pending, the Court of Appeals stepped in and agreed there was no need to prove a defendant’s mental state for non-speech-related stalking. The office of Attorney General Phil Weiser, who personally argued the Counterman case to the U.S. Supreme Court, urged the state’s justices to adopt that view.

“Surveilling, following, and approaching a victim are particularly invasive acts that do not implicate speech,” wrote attorneys for the state. “This is true even if stalkers don’t say anything threatening — or even don’t say anything at all.”

Hart, in the court’s opinion, wrote that the “repetitive nature” of Crawford’s unwanted contacts amounted to stalking, not whether his words were threatening. She added that the First Amendment may still apply to conduct that is “expressive enough” to convey a message.

But “Crawford has not established that his conduct meets this threshold for First Amendment protection,” Hart wrote.

The Supreme Court also acknowledged the template jury instructions for criminal cases, which were modified after Counterman, incorrectly suggest that prosecutors must prove a defendant’s mental state in any stalking case where the defendant’s communications are involved.

The case is People v. Crawford.