The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition

73 Pages Posted: 21 May 2024

See all articles by Genevieve Lakier

Genevieve Lakier

University of Chicago Law School

Evelyn Douek

Stanford Law School

Date Written: May 19, 2024


In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But this is puzzling because Counterman was not in fact convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone in order to be guilty of the crime. This Article argues that the Supreme Court’s confusion about the most basic facts of the case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence. These pathologies are a consequence of the impoverished view of the First Amendment’s boundaries depicted in the Court’s recent decisions, which suggest that the First Amendment’s doctrinal terrain can be described by a simple list of historically unprotected categories. This thin account of the First Amendment, and the doctrinal distortions it creates, are not inevitable, however. The Article argues for an alternative, more multi-dimensional approach to the question of the First Amendment’s boundaries—one that rests on a richer understanding of the traditions of speech regulation in the United States—and sketches out its implications for the law of stalking and, potentially, many other areas of free speech law. Courts do not need to deny the facts of the cases they adjudicate to craft a First Amendment jurisprudence that is doctrinally coherent, historically informed, and normatively desirable.

Keywords: First Amendment, free speech, history and tradition, stalking, cyberstalking, Stevens, Counterman

Suggested Citation

Lakier, Genevieve and Douek, Evelyn, The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition (May 19, 2024). California Law Review, Vol. 113, 2025, Available at SSRN: or

Genevieve Lakier

University of Chicago Law School ( email )

1111 East 60th Street
Chicago, IL 60637
United States

Evelyn Douek (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305
United States

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