Stalking is so closely correlated with lethal violence that experts refer to it as “slow motion homicide”: More than half of all female homicide victims in the U.S. were stalked before they were killed. Despite the terrifying and dangerous consequences, many victims of stalking do not report the abuse to law enforcement for fear they will not be taken seriously.
The reasonableness of that fear was vividly illustrated by the Supreme Court oral arguments in Counterman v. Colorado on Wednesday morning, as members of the highest court of the land joked about messages sent by a stalker to his victim, bemoaned the increasing “hypersensitivity” of society, and brushed aside consideration of the actual harm of stalking to focus on the potential harm of stalking laws.
For nearly two years, Billy Raymond Counterman sent thousands of unsolicited and unwanted Facebook direct messages to C.W., a local musician, ultimately driving her to abandon her career and leave the state. Counterman, who had previously served time in federal prison for making violent threats against his ex-wife and her family, argues that his conduct towards C.W. was free speech protected by the First Amendment. Counterman maintains, supported by amicus briefs from influential civil libertarian organizations such as the ACLU, the EFF, and FIRE, that stalking cannot be criminally prohibited except when the government can prove that the stalker subjectively intended to terrify his victim. The state of Colorado, supported by amicus briefs from First Amendment scholars, stalking experts, and domestic violence victim advocates, argues that it is enough to prove that the stalking would be terrifying to a reasonable person in light of the totality of the circumstances. If the court rules in Counterman’s favor, delusional stalking—no matter how objectively terrifying or threatening—will be transformed into an inviolable constitutional right.
During oral argument, Chief Justice John Roberts quoted a handful of the thousands of unsolicited messages Counterman sent to C.W. “Staying in cyber life is going to kill you,’” Roberts read aloud. After a pause, he joked, “I can’t promise I haven’t said that,” prompting laughter from other justices and the audience. Picking out another message, which he described as an “image of liquor bottles” captioned as “a guy’s version of edible arrangements,” Roberts challenged Colorado Attorney General Phil Weiser to “say this in a threatening way,” leading to more laughter from the court. And the laughs didn’t stop there: Counterman’s attorney, John Elwood, shared with the court that his mother would routinely tell him to “drop dead” as a child, but “you know, I was never in fear because of that.”
There were more chuckles when Justice Neil Gorsuch returned to Elwood’s anecdote during his questioning of Weiser, but Gorsuch shifted to a more serious tone to express his concern about the reasonable person standard. “We live in a world in which people are sensitive, and maybe increasingly sensitive,” he began. “As a professor, you might have issued a trigger warning from time to time when you had to discuss a bit of history that’s difficult or a case that’s difficult,” Gorsuch continued, a reference to Weiser’s prior experience teaching on a law school faculty. “What do we do in a world in which reasonable people may deem things harmful, hurtful, threatening? And we’re going to hold people liable willy-nilly for that?”
Justice Clarence Thomas echoed the concern, asking whether the reasonable person standard is appropriate given that people are “more hypersensitive about different things now.” Justice Amy Coney Barrett pressed the point as well, offering the following hypothetical: What if a college professor gives a lecture “about just how vicious it was to be in a Jim Crow South and puts up behind them on a screen a picture of a burning cross and reads aloud some threats of lynching that were made at the time” and “Black students sitting in the classroom” interpret the lecture as a physical threat “because they don’t understand it”?
The justices’ message was clear: Stalking is not the problem; sensitivity is. To them, stalking is quite literally a state of mind: If the stalker didn’t mean for his conduct to be frightening, then it isn’t. All the target has to do is understand that; she just needs to lighten up, take a joke, accept the compliment, grasp the lesson. Just because someone has made objectively terrifying statements is no reason to overreact and get law enforcement involved; victims should wait for the stalker to do something really frightening before they jump to conclusions.
One of the many painful ironies of this logic is that many stalking victims have already internalized it. Less than half of stalking victims seek help from law enforcement, in large part because they believe that the matter isn’t serious enough or that they can handle it on their own. Even the victims who do seek help from law enforcement will often not get it—police take no action at all in nearly half of all reported cases, and only make arrests in 7.7 percent of cases. If victims are lucky, their stalker will eventually lose interest and cease contact. If they’re not lucky, they end up dead.
The court’s discussion was so disconnected from the reality of stalking, so contemptuous of the victims targeted by it, and so awkwardly punctuated with culture-war buzzwords with no obvious bearing to the topic at hand, that it was sometimes hard to believe it was taking place within the Supreme Court and not a Fox News talk show. Perhaps nothing else could be expected from a far-right dominated court that has made its hostility to women and racial minorities abundantly clear. But the progressive justices did little to push back against the chief justice’s snickering tone, or to critique these efforts to turn an oral argument about stalking into a referendum on the supposed crisis of “hypersensitivity.”
Of course, had the conservative justices’ professed concern about “increased hypersensitivity” been sincere, there would be no need to reach for strained hypotheticals about college students overreacting to a lecture about the history of racism in the U.S. The actual, concerted, and ongoing efforts by GOP politicians to prohibit such a lecture from ever occurring in the first place is a far more apt example of fragility and intellectual cowardice. For that matter, there are a number of current Supreme Court justices who would provide excellent examples of hypersensitivity: Justice Thomas characterizing questions about credible sexual harassment allegations during his confirmation hearing as a “high-tech lynching”; Justice Brett Kavanaugh declaring that “my family and my name have been totally and permanently destroyed” by questions about credible sexual assault claims during his confirmation hearing; Justice Samuel Alito declaring that “saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”
One might have hoped that the recent rise in threats against the judiciary might have made the justices more empathetic to the harms of stalking. The Supreme Court’s 2024 budget request reflects heightened concern for judicial security, seeking nearly $6 million in new security funding because “on-going threat assessments show evolving risks that require continuous protection.” In his 2022 Year-End Report on the Federal Judiciary, Roberts praised new legislation that protects the privacy of personal information about judges and their families, writing that “we must support judges by ensuring their safety. A judicial system cannot and should not live in fear.” That, apparently, is only an appropriate fate for everyone else.