Cassell’s amicus brief cited in oral arguments before U.S. Supreme Court

Apr 19, 2023 | Criminal Law Program

An amicus brief authored by Paul Cassell, the Ronald N. Boyce Presidential Professor of Criminal Law at the College of Law and a University Distinguished Professor of Law, was referenced in oral arguments made today before the Supreme Court of the United States in the case Billy Raymond Counterman v. The People of the State of Colorado, in which Cassell is representing a crime victim pro bono.

Cassell is working as part of a legal team with top-tier litigators at the firm Gibson Dunn in Dallas. The team’s amicus brief was filed on behalf of the victim, Coles Whalen, who is a Colorado-based singer-songwriter who received thousands of threatening Facebook messages from Counterman, a fan.

The Supreme Court has agreed to hear the case in order to consider the issue of what constitutes a “true threat.” After Counterman was found guilty of stalking in a jury trial and was sentenced to prison, he filed an appeal arguing that his jury had not been properly instructed. The Colorado Court of Appeals rejected this argument and maintained that the defendant had made true threats to Whalen, which, although they did not explicitly threaten her, implied a disregard for Whalen’s life and a desire to see her dead.

In January 2023, the United States Supreme Court agreed to review the case, which centers on the question of whether, in order to establish that a statement is a true threat unprotected by the First Amendment, “the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective ‘reasonable person’ would regard the statement as a threat of violence.”

“Punishing egregious conduct like Counterman’s, while necessary to protect victims and vindicate their rights, poses no threat to free speech,” says Cassell in the amicus brief. Whalen “has an interest not only in seeking justice for herself but also in ensuring that other victims who are stalked, threatened, and harassed can receive the same protection and support that she did.”

The outcome of this case will be significant in determining how interpersonal threats are interpreted, and could have major implications for the protection given to victims of stalking and other forms of harassment.