Navigating SCOTUS’s Counterman on Online Harassment and Celebrity Stalking

Social media revolutionized how people communicate, allowing people to display their day-to-day activities. However, there are safety risks in a world where people share such activities and details of their private lives. Unfortunately, online stalking and harassment are common on social media and are experienced by around 40% of American adults.¹[1]Stacy Jo Dixon, U.S. Internet Users Who Have Experienced Online Harassment, 2021 Statista (June 28, 2023), https://www.statista.com/statistics/333942/us-internet-online-harassment-severity; Emily A. Vogels, The State of Online Harassment, PEW RSCH. CTR. (Jan. 13, 2021), https://www.pewresearch.org/internet/2021/01/13/the-state-of-online-harassment/. These threatening online comments have raised several issues. Are they to be received as real threats? Some online comments exist within the realm of permissible First Amendment free speech, but where is the exact line?

Counterman v. Colorado

On June 27, 2023, the Supreme Court decided Counterman v. Colorado, holding that the First Amendment requires proof that the defendant had some subjective understanding of the threatening nature of his statements.²[2]See Counterman v. Colorado, 600 U.S. 66, 71 (2023).

From 2014 to 2016, Billy Counterman sent hundreds of Facebook messages to C.W.,³[3]C.W. is a pseudonym used to protect the plaintiff’s privacy. a local Colorado singer he had never met, indicating that he was watching her, referencing “a fine display with your partner” and noting “a couple of physical sightings.”⁴[4]Counterman, 600 U.S. 66, at 70. He also messaged her, “[y]ou’re not good for human relations. Die.”⁵[5]Id. C.W. became extremely anxious, canceled shows, and attempted to subvert his harassment by creating new accounts and blocking him. This caused C.W. financial and emotional strain, and she eventually contacted the police.

Police charged Counterman under a Colorado statute penalizing any form of repeated communication in a manner that would and does cause a reasonable person to suffer severe emotional distress.⁶[6]See Colo. Rev. Stat. §18–3–602(1)(c). He moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and, therefore, did not establish a basis for criminal prosecution.⁷[7]Counterman, 600 U.S. 66, 2 (2023). After Colorado state courts affirmed the conviction, the Supreme Court granted certiorari.⁸[8]Id.

The Majority Opinion

Counterman’s counsel argued that the Colorado law violated the First Amendment, and the Court ultimately agreed. The justices held that because the Colorado statute did not require proof that Counterman subjectively intended to cause C.W. emotional distress, only that a reasonable person perceived it as such, it was unconstitutional. “Imprisoning a person for negligently misjudging how others would construe the speaker’s words would erode the breathing space that safeguards the free exchange of ideas,” the Justices wrote.⁹[9]Petition for Certiorari granted: Counterman v. Colorado 497 P. 3d 1039, cert. granted, Counterman v. Colorado, 600 U.S. 66 (2023).

In their 7-2 decision, the Court defined “true threats” as “serious expressions” conveying that a speaker intends to “commit an act of unlawful violence.”¹⁰[10]Id. at 74 (citing Virginia v. Black, 538 U.S. 343, 359 (2003)). The existence of a threat depends, in part, on what the statement imparts to the listener or receiver.¹¹[11]Id. (citing Elonis v. United States, 575 U.S. 723, 733 (2015)). Justice Kagan, writing for the majority, stated that while the First Amendment does not protect true threats of violence, “[it] still requires proof the defendant had some subjective understanding of the statements’ threatening nature.”¹²[12]See Adam Liptak, Supreme Court puts First Amendment limits on laws banning online threats, THE N.Y. TIMES (June 27, 2023), https://www.nytimes.com/2023/06/27/us/politics/supreme-court-first-amendment-colorado.html?smid=url-share. But the Court also held that a mental state of recklessness would be sufficient to support a “true threat” conviction stemming from language published online or otherwise.¹³[13]Id. This would include a showing “that the defendant consciously disregarded a substantial risk that a receiver would view communications as threatening violence.”¹⁴[14]Counterman, 600 U.S. 66 at 69. The Justices, therefore, vacated Counterman’s conviction and remanded it for further proceedings.¹⁵[15]Liptak, supra note 12.

Implications – Celebrity Stalking and Online Threats

Before Counterman v. Colorado, actual intent had to be proven, whereas the recklessness standard is a lower bar to meet. Nevertheless. In its opinion, the Court highlighted a mental state requirement for true threats to limit a law’s chilling potential. The Court allows for a recklessness standard that is considerably easier for the government to prove than actual intent—and actual intent is the way the Court could have gone. Under the recklessness standard, as long as the defendant consciously disregarded a substantial and unjustifiable risk that their conduct would cause harm to another, the government has ample leeway to argue that a recklessness mindset exists in the stalkers’ minds. Therefore, it would escape First Amendment protection.

While celebrity stalking is not a new phenomenon, the digital age has amplified its presence. In the last 15 years, stalkers victimized celebrities like Justin Bieber, Gigi and Bella Hadid, Kendall and Kylie Jenner, Taylor Swift, Selena Gomez, Kim Kardashian, Ashley Tisdale, and Ariana Grande.¹⁶[16]Stacy Grant, 12 Celebrity Stalking Stories, SEVENTEEN (2018), https://www.seventeen.com/celebrity/celebrity-couples/g25335119/celebrity-stalker-stories/. For example, Gigi Hadid’s stalker made online comments on Facebook and was jailed for three years for these statements and repeated break-in attempts.¹⁷[17]Lauren Milligan, Gigi Drama as Stalker Breaches Security, BRITISH VOGUE (2015), https://www.vogue.co.uk/article/gigi-hadid-stalker-in-building-new-york-apartment. Ashley Tisdale’s stalker reportedly made over 18,000 Tweets referencing the singer stating he was plotting to kill her and showed up at her home twice before he was arrested and jailed for a year.¹⁸[18]Ashley Tisdale to cops – I fear my stalker will shoot me, TMZ (2013), https://www.tmz.com/2013/05/21/ashley-tisdale-obsessed-twitter-fan-restraining-order.

With the Counterman ruling, Courts might be more willing to permit First Amendment defenses under the new test of recklessness, but it might still be up to juries to decide. For example, in the Gigi Hadid case, had her stalker not attempted to break into her home, the court under Counterman would permit such a defense, as his comments resembled more obsession and adoration than actual threats and could conceivably be seen by a jury as such. In contrast, a court would likely find a First Amendment defense invalid as a matter of law or as a jury question for Ashley Tisdale’s stalker because his comments illustrated a murder plot, which could rise to the level of a “serious expression” conveying that a speaker intends to “commit an act of unlawful violence” or is reckless in failing to understand how the language would be perceived.¹⁹[19]Id.

So, what’s next for the world of online harassment?

The Court’s ruling protects certain speech under the First Amendment but is decidedly protective of people–celebrities and users alike. Further, social media platform guidelines still protect people, which fills the potential gaps in the law and mitigates more minor incidents of online stalking and harassment. Online harassment is a growing issue, but in this instance, the Court values preserving free speech that does not resemble credible threats. It will be interesting to see if courts and social media platforms will partner to prevent online harassment, especially harassment targeted at notable figures, and uphold First Amendment rights following Counterman.

Written by: Amanda Mintz
Amanda is a 2025 J.D. Candidate at Brooklyn Law School