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Photo: Coles Whalen (photo from Facebook) | By Kyle Wagner, Westword | What constitutes a criminal threat on social media? That’s a question the U.S. Supreme Court will consider in April when it reviews a Colorado case in which Billy Raymond Counterman was convicted of stalking singer-songwriter Coles Whalen over a six-year period beginning in 2010.

In 2016, Counterman, now 61, was sentenced to four and a half years in prison on two Class 5 felonies that were deemed to be “true threats” to Whalen, a decision upheld by the Colorado Court of Appeals, although Counterman claimed his messages constituted protected speech.

Now, in the second big Colorado case that SCOTUS will review this session (the first was the gay-weddings website case heard in December), Billy Raymond Counterman v. The People of the State of Colorado will present oral arguments around the question of whether threats made via social media are actually “true threats,” and thus unprotected by the First Amendment, or whether the prosecution must prove that the sender subjectively understood that the message was threatening or meant for it to be. In addition, the court will review whether it is enough to show that an objective, “reasonable person” would classify the messaging as a violent threat.

Counterman, who has been out of jail since January 2020, is being represented by the Cato Institute, a nonpartisan public policy research foundation focused on “individual liberty, free markets and limited government.” Cato’s team — which includes research analyst Trevor Burr, a graduate of the University of Colorado Boulder as well as the University of Denver Sturm College of Law — argues that although Counterman was convicted of sending “admittedly abrasive online messages,” they weren’t true threats, but instead should be treated just like “obscenity, defamation, and other exceptional categories of unprotected speech.”
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Read the rest of Kyle’s story here:

[Thanks to Alex Teitz for contributing this article! http://www.femmusic.com]

Photo: Coles Whalen (from her Facebook page)

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