10 SEPTEMBER 25-OCTOBER 1, 2025 westword.com WESTWORD | MUSIC | CAFE | CULTURE | NIGHT+DAY | NEWS | LETTERS | CONTENTS | Whalen, authorities told her that Counter- man suffered from a psychiatric delusion known as erotomania, defi ned by the false belief of being in a relationship. His legal defense argued that he had a mental illness but never really meant to hurt anyone. Later, she learned that Counterman had already been prosecuted federally for threatening to rip out a woman’s throat, and was still on supervised release. Now Counterman was let out of jail with an ankle monitor to await trial; he was charged with three counts of violating Colorado’s anti-threat laws, meant to protect victims from serious emotional distress. Whalen secured a restraining order to keep him away from her shows. One day, law enforcement authorities called Whalen and warned her not to go home because Counterman’s ankle monitor showed he was there waiting for her, but then called back and said not to worry, the system had confused his address for hers. Whalen already felt “totally exposed” at shows, she says, and now she didn’t feel safe anywhere. She fi nally had a picture of Count- erman and handed it to security wherever she performed, but she couldn’t erase the lingering fear that he was in the audience. She cancelled all her remaining shows and public appearances. Ahead of his trial in 2017, Counterman’s attorney fi led a motion arguing for all charges to be dismissed because he’d only been exercising his protected speech. A judge dismissed the motion after deciding that Counterman’s messages presented a “true threat” to Whalen. At trial, Whalen felt exposed all over again. She had to testify for a day and a half, sitting “a few feet away” from Counterman, she remembers. Her family and friends also testifi ed as to how much his behavior had affected Whalen. A jury found Counterman guilty of vio- lating three Colorado anti-threat laws, and he was sentenced to four and a half years in prison. He tried to appeal his case from prison on several occasions, always unsuc- cessfully. On to the Supreme Court By the time Counterman was released from prison, Whalen had left Colorado and stopped touring. She didn’t share her where- abouts and performed live very rarely, never posting where she was going to be. She wasn’t receiving messages from Counterman, but she knew he was still out there. In 2021, the Colorado Court of Appeals heard his case and upheld his conviction. But Counterman wasn’t the only one now pleading his case. The First Amendment argument that his threats were protected speech because he didn’t intend to harm Whalen had attracted the Cato Institute, which claimed that his con- viction could have a chilling effect on free speech. “Like, ‘Hey, you keep talk- ing to me like that, you could be criminally prosecuted,” Jay Schweikert, a research fel- low at the Cato Institute, said in support of Counterman. “It’s really a lot more about the chilling effect this would have on speech, and the ability that public fi gures – especially political fi gures – would be able to have to use this sort of implicit or explicit threat of criminal prosecution to shut down their critics.” The United States Su- preme Court took up Count- erman v. Colorado in 2022 and heard oral arguments on the case in April 2023. Washing- ton, D.C.-based lawyer John Elwood argued on behalf of Counterman, while Colorado Attorney General Phil Weiser represented Whalen’s side. Weiser warned that consider- ing Counterman’s obsessive bothering to be free speech would open the way for stalking cases to become domestic violence cases. But most of the justices who asked ques- tions, including Clarence Thomas, Brett Kavanaugh and Neil Gorsuch, himself a Coloradan, worried how the state was decid- ing what could be considered a threat to a reasonable person online without knowing the true intent of the messenger, especially in such a “sensitive” time. “We live in a world in which people are sensitive and maybe increasingly sensitive,” Gorsuch told Weiser during oral arguments. “As a professor, you might have issued a trig- ger warning from time to time when you had to discuss a bit of history that’s diffi cult or a case that’s diffi cult.” At one point, Chief Justice John Roberts pressed Weiser to explain how the state knew that Counterman’s messages were real threats, pulling up some of Counterman’s messages. “Staying News continued from page 8 Phil Weiser with Coles Whalen. COURTESY OF COLES WHALEN continued on page 12
