Stalking: The Supreme Court Case You Might Not Have Noticed

April 24, 2023

With all of the (deserved) attention going to the Supreme Court’s decision on the abortion drug Mifepristone, you might not be aware of another critically important case, Counterman v Colorado, that has the potential to make women and other victims of stalking much less safe.

Slate magazine’s article Chief Justice John Roberts’ Mockery of Stalking Victims Points to a Deeper Problem, describes the case in which Billy Raymond Counterman sent thousands of unsolicited Facebook messages to a local musician, C.W., forcing her to not only abandon her public-facing career, but even causing her to flee the state. Counterman, who has already spend time in prison on federal charges of threats of violence against his ex-wife, now argues that his conduct of thousands of unwanted messages to C.W. is protected speech under the First Amendment.

While Counterman’s argument seems laughable on its face, it is only stalking itself that the conservative Justices find funny. During the hearing on April 21, Roberts, Thomas, Barrett, and Gorsuch all made jokes about stalking, drawing laughter from those in the courtroom. The most startling of which was Chief Justice Roberts reading one of the messages aloud: “Staying in cyber life is going to kill you,” and followed the quote by joking, “I can’t promise haven’t said that.” Once a good time was had by all with their comedy of the absurd, they got serious about what they saw as the real problem of the day: people are just too darn sensitive. Gorsuch: “We live in a world in which people are sensitive, and maybe increasingly sensitive…[are we going to] hold people liable willy-nilly for that?” “That” meaning other’s over-sensitivities to stalking.

This begs the question, are we too sensitive to stalking? Is it simply a case of a person’s freedom of speech or no-harm, no foul? It is not lost on me that this case is playing out during Sexual Assault Awareness Month. The link between stalking and sexual violence and domestic violence are well documented. Stalking is a crime of increasingly dangerous behaviors. Typically, they begin with repeated or unwanted conversation, often sexual in nature. These behaviors are long-term in nature with half of all stalking victims reporting that the stalking took place between one and twelve months. Another quarter of all victims report stalking behaviors that last two or more years. Because stalking behaviors escalate over time, stalking is considered a risk factor for severe, even lethal violence. 31% of women who were stalked by a former intimate partner were eventually sexually assaulted by that partner. Women stalked by a violent partner after obtaining a protective order were 9.3 times more likely to experience sexual assault than women with protective orders who were not stalked (Stalking Prevention and Awareness Resource Center). More than 75% of women who were murdered or nearly murdered were stalked by their assailants in the twelve months prior to the act (Mechanic, et al 2010).

Stalking is never innocent and should never be considered protected speech. For Supreme Court Justices, whose job it is to oversee that justice be done for all citizens, to laugh in the face of lethal danger is a chilling indicator of how safe women are (or are not) in the United States.

If you are a victim of stalking and you are local to the Charlottesville, Virginia/ Central Virginia area, you can reach out at our hotline for help: 434-977-7273. If you are outside of the area, you can call the RAINN hotline at 1-800-656-4673. You are not alone. We believe you.


Mechanic, et al. (2010). The Impact of Severe Stalking Experienced by Acutely Battered Women: An Examination of Violence, Psychological Symptoms and Strategic Responding. Violence Vict. 2000 Winter; 15(4): 443–458.

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