Even if Counterman never uttered a threatening word, his relentless pattern of sending private communications targeting a specific, unwilling victim would still be punishable as stalking, argues Evelyn Douek, assistant professor of law at Stanford Law School, who coauthored a brief to the court with two other First Amendment scholars.

“We are perplexed and frustrated and amazed that this case has been so successfully recast as a threats case,” Douek says, noting that the question of what is or isn’t a threat arose through Counterman’s appeals process.

“Stalking statutes were passed in response to the fact that these stalkers commit this harm, and very often they don’t make explicit threats,” Douek says.

Offline, stalking may mean surveilling someone at their home or showing up at their office. But online, cyberstalking often implicates speech, making it an already tricky category of crime to police.

If the court were to side with Counterman, Douek says, it could undermine all of those laws, making a crime that is already difficult to prosecute even harder to police. “We are in a world where this kind of conduct is already not taken seriously enough,” Douek says. “To undermine the weak protection that already exists would be very scary.”