One Colorado stalking victim never wanted to become the center of a First Amendment case at the US Supreme Court

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Courtesy photo
Coles Whalen in a promotional photo.

Coles Whalen never set out to be a poster child for a First Amendment case.

Whalen had been enjoying her life as a rising singer-songwriter in Colorado. She had opened up for some big acts, including her hero Joan Jett, and was writing and performing rock music all over the country. 

When she started receiving unwanted Facebook messages from Billy Raymond Counterman in 2010, she pushed it off, blocked him and ignored it. She never responded. By 2014, the messages were coming in persistently. He told her he would bring by some of his garden tomatoes. He told her she looked stunning the night before. He asked how she enjoyed the time with her mother.

The messages were at once creepy and sometimes escalated.

“Knock, knock, five years on FB. I miss you, only a couple physical sightings,” one message wrote. “You’ve been a picker upper for me more times than I can count.”

A couple of months later, he wrote another angry message containing expletives. He followed it with yet another message: “Your (sic) not being good for human relations. Die, don’t need you.”

Whalen eventually called the police. Counterman was arrested and convicted of stalking in Arapahoe County court and served a couple of years in prison and another on parole. He had previous convictions on similar allegations.

Seven years later, and this story isn’t finished.

In a rare decision to pluck a case from a state’s lower court, the high court justices agreed to take up the Counterman case earlier this year and, on Wednesday, will hear arguments on whether his messages were so-called “threatening speech” or whether they should have been protected by the First Amendment.

Colorado’s Attorney General Phil Weiser will argue on behalf of the state that Counterman’s conviction was legal and the state’s stalking laws are constitutional.

Whalen, in one of her first interviews about the experience granted to CPR News, said the high court’s decision to reopen up all the details of her 2016 stalking case is not one that she saw coming or that she wanted.

“I cannot believe that this is happening to me again, and that the implications are even greater than they may have been in this first trial that I went through,” she said, from her East Coast home, in a location she prefers not to share. “And after what I went through and after what my family had to go through, and considering the clear, long-lasting harm that this had on me. I just can't believe that anybody would question whether or not this is a true threat.”

Counterman’s public defenders contend his conviction was a violation of his free speech and appealed his case all the way up to the U.S. Supreme Court. They argue that Counterman was mentally ill and never intended to hurt Whalen and that he didn’t understand the messages to be truly threatening because of that mental illness. They also argue that the notion that people could be imprisoned for things they say online opens up a larger free speech debate that touches on First Amendment protections.

“I think it really highlights the kind of errors that can happen here,” said John Elwood, a Washington, D.C.-based attorney who will argue the case on behalf of Counterman this week. “The words coming out of someone’s mouth, he really did not understand them to be a threat. Here, there is a real reason to believe he didn’t understand it in those terms.”

Courtesy photo
Coles Whalen in a promotional photo.

'I don't know if any dream is worth feeling this terrible'

For Whalen, her ordeal has now spanned more than a decade and nearly derailed her emerging career and upended her life. 

She’s had to leave Colorado, change careers and push herself through fears she never thought were possible, like panicking about playing in front of people she can’t see. She stopped doing live performances and waited to restart until she felt stronger. 

“I realized that trauma doesn’t just heal because somebody goes to jail,” she said. “The damage had been done. What I anticipated was that I would be the person that I was before the trial and when the trial ended. And what I found was that I was not.”

The months between when Counterman was arrested and when he was convicted and sentenced were among the most harrowing for Whalen, who knew that he could have been angry that she reported him to police. 

“He was out on the streets with me,” she said.

At the suggestion of police detectives, Whalen took a concealed-carry class and began carrying around a gun — something she had never done before. She varied her routes so she would be harder to follow.

And, increasingly, she found it extremely difficult to do what she loved best: sing and perform. 

She began feeling terrified when performing in dark rooms where she couldn’t see everyone.

At one particular performance in Dallas, her palms got clammy, she started seeing spots and was having trouble breathing. At the time, the now 43-year-old thought she was having a heart attack. She played one more song, sitting down, and then had to leave the stage. She went to a dressing room and cried hard for a very long time. When she finally came out to talk to her bandmates, she told them she didn’t know if she could keep singing.

“I told them, I don't know if any dream is worth feeling this terrible,” she said.

During Counterman’s trial, she testified about the fear he put her through.

“I decided to take the stand and that meant I had to prove that I suffered serious emotional distress,” she said. “I had to speak out loud in front of this man about all of the nightmares and sleepless nights and the canceled shows and not being able to go anywhere alone.”

'We got this conviction but I still lost my dream'

Once Counterman went to prison, Whalen thought she’d be able to bounce right back to the performer she was before it all happened.

“I thought that life would be mine again and sadly it wasn’t,” she said. “We got this conviction but I still lost my dream. It was my dream and it wasn’t his right to take that from me.”

Whalen knew she needed to get out of Colorado and do something different. She accepted a marketing job on the East Coast, where she ended up meeting her husband and having two children.

“I had changed so much,” she said. “Playing music, songwriting, performing, connecting with people in that way, that’s who I am. That’s my dream. That’s what I’ve always done. The fact that I’m not playing much music these days is shocking to the people that have known me the longest. We're not just talking about a job that I lost here.” 

Whalen said it took years to heal.

“I tried to find other ways to fulfill my passion, hoping that music would someday be available to me again,” she said.

Courtesy photo
Coles Whalen in a promotional photo.

'I cannot believe that this is happening to me again'

But she has just started to come back. She wrote a song about the experience called “Stronger” and she has even started playing live — but only to small crowds, usually by invite only.

Then, she got the news that the U.S. Supreme Court was going to take a look at the constitutionality of the state’s decision to imprison her convicted stalker and whether those messages should have been protected speech. 

“I am just astounded,” Whalen said. “I cannot believe that this is happening to me again.”

Whalen is torn about how to be present for the case now.

On one hand, she comes from a long line of public servants and she feels the responsibility to explain her side of the story and to convey how truly horrifying the years were when she was on the receiving end of so many unwanted messages.

One detective estimated that Counterman had sent her hundreds of thousands of messages — maybe even one million of them. Whalen didn’t read them all.

But she’s worked so hard to get past the experience and doesn’t want a major emotional setback. She decided not to go to arguments in person in Washington, D.C., on Wednesday. And she doesn’t even know whether she’ll listen to them online. 

“We are here debating a law whose outcome could have serious implications for victims of cyber harassment and cyber stalking all over the United States, and reminding people that there are real humans whose lives are really damaged by this type of threatening speech,” she said. “Lawyers and justices can pull apart the single messages that he sent me. Was this one threatening? Was that one threatening? But the bigger picture, the lived experience is much more than that.”