Counterman Follow-Up: Prosecuting Stalkers

Two years ago, the U.S. Supreme Court decided in Counterman v. Colorado that if a stalker is prosecuted on the ground that his communications are threats, the prosecution must show a mental state of at least recklessness regarding the threatening nature of the communications. At the time, I thought it was unfortunate that the case went up as a “threats” case because there was a much better basis available. See this post. With stalkers, it is usually not so much the threatening content of the communication that is the problem, but rather the extreme persistence even after they have been told to buzz off. A long series of cases gives the government much more latitude to regulate the “time, place, and manner” of speech. The failure of the majority opinion to address this raised a danger that stalkers could get off when the case cannot be made that the speech amounts to a threat and the stalker knows or should know that.

Sure enough, this happened in Colorado, with the trial judge acquitting the stalker. But in Colorado the prosecution can ask the Court of Appeals to disapprove the trial court’s ruling for future cases, even though this perpetrator cannot be retried.

The Court of Appeals got it right, fortunately. Michael Karlik has this story in Colorado Politics and the Colorado Springs Gazette. The opinion is here. The story indicates that another case along these lines is pending in the Colorado Supreme Court.