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Supreme Court clarifies when online harassment can be prosecuted

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(CNN) — The Supreme Court on Tuesday wiped away a lower court decision upholding the stalking conviction of a Colorado man who sent hundreds of messages to a woman over Facebook.

The justices said the court had used the wrong standard in convicting the man and sent the case back down with a new test to apply to the case. The justices said it would suffice for prosecutors to show that the speaker was aware that his speech could be viewed as a threat and that the speech was reckless, even if not intentionally threatening.

The court’s move could worry those working to combat stalking in the age of social media where the internet has expanded the number of violent threats, enabling activities that include online harassment and intimidation. They fear the court’s standard could raise the bar for the government when trying to prove that a series of messages amounted to a true threat, unprotected by the First Amendment.

While advocates for abused women have pushed the court to protect less such threatening speech, free speech advocates have expressed concern that the court could act too broadly and chill speech that is misunderstood to be a threat.

The case involves a Colorado man, Billy Raymond Counterman, who was convicted of stalking a songwriter, Coles Whalen, after sending her hundreds of direct messages on Facebook.

Whalen found the messages “creepy” especially because they indicated he was surveilling her. She never responded, but instead, repeatedly tried to block him on Facebook. But he continued to create new accounts in order to send her messages.

The messages –over a two year period– included:

• “was that you in the white Jeep?”

• “seems like I’m being talked about more than I’m being talked to. This isn’t healthy.”

• “You’re not being good for human relations. Die. Don’t need you.”

At one point he asked her for a “hot date at Wal-Mart” and another time expressed anger and frustration at her lack of response.

Whalen was so upset she took preventative measures such as hiring extra security and even canceling some of her performances. Ultimately, she filed suit, and Counterman was found guilty of stalking and sentenced to four and a half years in prison. But his lawyers argued that the conviction violated his free speech rights.

The Supreme Court has defined “true threats” – those that are unprotected by the First Amendment – as statements by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence. The speaker need not carry out the act.

But lower courts have been divided over whether the government must demonstrate that the speaker knew the threatening nature of the speech. Some courts have said it’s enough that a “reasonable person” recognized the threat.

John Elwood, a lawyer for Counterman, argued that his client’s speech was protected by the Constitution’s Free Speech Clause and said the justices should insist on a standard that “considers the speaker’s intent” in order to “avoid criminalizing inevitable misunderstandings.” He said that Counterman suffers from mental illness and did not understand his messages to be threatening.

“The bedrock principle underlying the First Amendment is that the government may not prohibit expression of an idea simply because society finds the idea itself offensive or disagreeable,” Elwood said.

Colorado defended its stalking law, stressing that it protects victims from “intrusive, threatening, and escalating course of conduct characteristic of stalking.”

Colorado Attorney General Philip J. Weiser argued that Whalen had dedicated her life to making music and after years of unwanted messages, her dream “ended” and her mental health deteriorated.

This story has been updated with additional details.