A few years ago, Billy Raymond Counterman was convicted of stalking. Now his case is before the Supreme Court—where, bafflingly, the justices spent oral arguments last week exploring how to define a “true threat,” something Counterman was never convicted of making. Threats and stalking are entirely different crimes, with entirely different elements and constitutional implications. If the Court goes ahead and issues a ruling about threats, as it seems poised to do, it could inadvertently weaken stalking laws around the country. A set of imaginary facts could lead to serious real-world harm.

How did we get here? At some point around 2014, Counterman apparently became obsessed with Coles Whalen, a singer-songwriter in Denver. He seems to have suffered from delusions that the two were in a relationship, despite never having met. Over the course of two years, Counterman sent her hundreds of direct messages on Facebook. Some were aggressive. Some were creepy, as when he asked if he’d seen her driving a white Jeep, a car she had once owned. Many were simply confusing or mundane, such as when he said he would bring her tomatoes from his garden, sent a frog emoji, or asked Whalen, a complete stranger, “I am going to the store would you like anything?” Whalen repeatedly blocked him, but Counterman just created new accounts. The messages would not stop.

Whalen eventually went to the police. Prosecutors initially charged Counterman with both making threats and stalking, but dropped the threats charge before trial. This was smart: The stalking charge was a much better fit for what Counterman had done. One of the most common techniques stalkers use is “life invasion,” the persistent and unwanted intrusion into the daily routines of their victims. Life invasion can be profoundly traumatic even when it doesn’t involve overt threats—in part because the willingness of a total stranger to force their way into your life raises the implicit question of what else they will do. Whalen testified that she began having panic attacks, terrified that Counterman would show up at her concerts. Her performing career stalled, and she found another job. The jury concluded that, in this case, it was reasonable for Whalen to experience “serious emotional distress” as a result of Counterman’s relentless stream of messages. He was convicted and sentenced to prison.

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