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.

[Timothy Zick: Making true threats is a crime]

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.

Here is where the case took a strange turn. On appeal, Counterman’s lawyers argued that his stalking conviction was unconstitutional. Counterman hadn’t intended to scare Whalen, they claimed, and so his messages to Whalen did not rise to the level of true threats. Given that he hadn’t been convicted of making threats in the first place, this was a bit like a driver challenging a speeding ticket on the grounds that he wasn’t drunk. And yet Colorado reached for its Breathalyzer. Instead of simply pointing out that the stalking statute didn’t require them to prove that he had threatened anyone, the state’s lawyers engaged with the debate on Counterman’s terms. Focusing on a handful of messages, including “Fuck off permanently” and “Die. Don’t need you,” they contended that Counterman had indeed threatened Whalen. They argued that what mattered was what he had said, taken in context, not his subjective intent. The Colorado Court of Appeals agreed, rejecting Counterman’s appeal but implicitly affirming his framing of the case.

And so, by the time Counterman’s appeal reached the Supreme Court, the underlying facts had been reimagined. Now the case was packaged as a chance to finally weigh in on a long-running dispute in First Amendment law. Everyone agrees that free speech doesn’t include the right to threaten someone, but views differ on what makes a threat a threat. Is it an objective question of how a reasonable person would react to what was said? Or is it subjective, turning on whether the speaker intended to terrify?

It’s the kind of subtle distinction that lawyers, judges, and academics love to sweat over, which may help explain why nobody seemed to notice how far the case had drifted from what had actually happened. Indeed, the Court and many constitutional lawyers had been waiting for years for such a case. Counterman’s lawyer, John Elwood, had pressed for the subjective theory in a 2015 case, Elonis v. United States, which The New York Times described at the time as an opportunity for the Court to determine “how the First Amendment applies to social media.” In the end, however, the Court decided the case on statutory grounds, leaving the First Amendment question for another day.

[Read: Does a true threat require a guilty mind?]

In the media, Counterman was billed as a chance for the Court to revisit Elonis, and the significant differences between the cases got swept aside. Both concerned disturbing messages on Facebook, but whereas Anthony Elonis publicly posted a handful of violent screeds to his Facebook page, visible to his friends, Counterman sent hundreds upon hundreds of private messages to a single stranger who repeatedly blocked him.

Before the oral argument, we filed an amicus brief, along with fellow First Amendment scholar Eugene Volokh, urging the Court not to treat Counterman as a true-threats case. Ultimately, however, the arguments proceeded as if in another universe—one in which Counterman had actually been charged, prosecuted, and convicted for making threats. At one point, Justice Neil Gorsuch asked whether Colorado could have had an easier time if it had “pursued the defendant for stalking and secured a conviction for that.” The answer to that question is definitively yes, because that is in fact what happened. But, apparently committed to arguing about true threats, Colorado Attorney General Phil Weiser went along with the conceit that that’s what the case was about. By this point, the lawyers, the justices, and the other amicus briefs seemed to have lost sight of where this case had actually started.

This is not merely an academic or theoretical concern. How the Court characterizes Counterman’s behavior could have a significant effect on future stalking cases. Courts have for the most part rejected First Amendment challenges to stalking laws so long as they are narrowly defined to criminalize repeated, unwanted communication that is directed at a specific individual, and that causes that person significant emotional distress. But Counterman could change that. When lower courts apply Supreme Court precedent, they often look at the facts of the case to see how it applies to the one they’re deciding. If the Court accepts Counterman’s legal theory, lower courts will see a case in which a stalking conviction was overturned because it didn’t meet the criteria for true threats. The practical effect could be to dramatically raise the constitutional bar for protecting cyberstalking victims.  

This would be a tragic outcome. Stalking laws were passed precisely to protect victims, mostly women, from menacing behavior even when their tormentor made no explicit threats. California enacted the United States’ first stalking law in 1990 after the actress Rebecca Schaeffer was shot and killed by an obsessive fan who had stalked her for years. Soon after, in unrelated incidents, four other California women were killed by stalkers. In every case, the killers had stalked their victims relentlessly, and in every case, law enforcement had been powerless to help until it was too late. Since then, all 50 states as well as the federal government have enacted laws against stalking.

Studies show that many stalkers do not expressly threaten their victims. To prevent the law from intervening unless a stalker says a particular set of words would be to misunderstand the harm that stalking laws seek to prevent. And it would leave millions of victims a year without the ability to seek protection.

This outcome is still hypothetical, of course. The Court can easily avoid it by resisting the urge to graft a constitutional ruling onto a completely mismatched set of facts. Billy Raymond Counterman couldn’t distinguish between reality and fantasy. Hopefully the Court is up to the challenge.