Supreme Court backs man who sent female musician flood of unwanted messages

The 7-2 decision, authored by liberal Justice Elena Kagan, vacated a lower court's ruling that had rejected defendant Billy Counterman's claim that his messages to Denver singer-songwriter Coles Whalen were protected under the U.S. Constitution's First Amendment. Whalen said he sent thousands of disturbing and threatening messages over two years to her personal and public Facebook accounts, some suggesting he had seen her in public.

Counterman had a history of making violent threats to women and was on supervised release from one such federal conviction during the two years he continuously messaged Whalen. He was found guilty in a 2017 trial of stalking Whalen and sentenced to 4½ years in prison as he pursued his First Amendment appeal.

John Elwood, an attorney for Counterman, hailed the court's recognition that "the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening." The ruling did not go that far, saying prosecutors need only show that a speaker acted recklessly, meaning the person is "aware that others could regard his statements as threatening violence and delivers them anyway."

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