Page:Counterman v. Colorado.pdf/21

4 (Colo. App. 2021). This kind of prosecution raises fewer First Amendment concerns for a variety of reasons. Stalking can be carried out through speech but need not be, which requires less First Amendment scrutiny when speech is swept in. See, e.g., Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 62 (2006). The content of the repeated communications can sometimes be irrelevant, such as persistently calling someone and hanging up, or a stream of “utterly prosaic” communications. Repeatedly forcing intrusive communications directly into the personal life of “an unwilling recipient” also enjoys less protection. Rowan v. Post Office Dept., 397 U. S. 728, 738 (1970). Finally, while there is considerable risk with a single intemperate utterance that a speaker will “accidentally or erroneously incur liability,” (internal quotation marks and alterations omitted), that risk is far reduced with a course of repeated unwanted contact. Take, for example, petitioner continuously contacting C. W. despite her blocking him.

Given this, prosecuting threatening statements made as part of a course of stalking does not squarely present the hardest questions about the mens rea required to prosecute isolated utterances based solely on their content. True-threats doctrine came up below only because of the lower courts’ doubtful assumption that petitioner could be prosecuted only if his actions fell under the true-threats exception. I do not think that is accurate, given the lessened