Colorado Stalking Charges And The First Amendment - What You Need to Know — Colorado Criminal Lawyer Blog

By H. Michael Steinberg, A Colorado Criminal Defense Lawyer – Practicing Colorado Criminal Law from both sides for over 40 years.

Introduction:

If you’ve been charged with stalking in Colorado, you may feel like the law is particularly unfair or oppressive. You would not be alone in those thoughts.

This is true especially if the Colorado Stalking charge under C.R.S. § 18-3-602, charge is based on text or dm messages, emails, or other words you may have said.

In 2023, a U.S. Supreme Court decision Counterman v. Colorado changed the game.

You’ve Been Charged with Stalking. But What Section Of The Law Are You Charged?

Colorado’s stalking law, C.R.S. § 18-3-602, makes it illegal to repeatedly contact, follow, or communicate with someone in a way that causes them serious emotional distress.

On the surface, that sounds straightforward. But here’s the catch: many stalking charges are based entirely on what you said — texts, emails, Facebook messages, voicemails etc.

That’s where the First Amendment – the right of free speech is implicated directly when speech is somehow punished. The government can’t just impose criminal punishment for words you’ve spoken without running into some serious constitutional questions.

Colorado Stalking Charges Come in Different Forms

You might be charged with one of more of the laws provisions:

•Making a credible threat and then repeatedly contacting the person — This is the most serious version. If you made a threat and then kept texting, calling, or messaging after being told to stop, you’re looking at a class 4 felony, which means 2 to 4 years in prison.

•Making a credible threat and repeatedly communicating in any form — Similar to above, but the repeated contact doesn’t have to include following or surveillance. Still a class 4 felony on a first offense.

•Repeatedly communicating in a way that causes serious emotional distress — This is the broadest version. There doesn’t have to be an explicit threat; the prosecution just has to show that repeated contact upset the other person. A first offense is a class 5 felony (still serious — 1 to 3 years). This is also where the First Amendment does most of its work.

Here is the law as of July 2026:

Universal Citation: CO Rev Stat § 18-3-602 (2025)

(1) A person commits stalking if directly, or indirectly through another person, the person knowingly:

(a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship; or

(b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or

(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

(2) For the purposes of this part 6:

(a) Conduct “in connection with” a credible threat means acts that further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat.

(b) “Credible threat” means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person’s safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. The threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.

(d) “Repeated” or “repeatedly” means on more than one occasion.

(3) A person who commits stalking:

(a) Commits a class 5 felony for a first offense except as otherwise provided in subsection (5) of this section; or

(b) Commits a class 4 felony for a second or subsequent offense, if the offense occurs within seven years after the date of a prior offense for which the person was convicted.

(4) Stalking is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10).

(5) If, at the time of the offense, there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect against the person, prohibiting the behavior described in this section, the person commits a class 4 felony.

(6) Nothing in this section shall be construed to alter or diminish the inherent authority of the court to enforce its orders through civil or criminal contempt proceedings; however, before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the judicial district of the court where the proceedings are to be heard and the district attorney for the judicial district in which the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.

(7) A peace officer shall have a duty to respond as soon as reasonably possible to a report of stalking and to cooperate with the alleged victim in investigating the report.

(8) (a) When a person is arrested for an alleged violation of this section, the fixing of bail for the crime of stalking shall be done in accordance with section 16-4-105 (4), C. R. S., and a protection order shall issue in accordance with section 18-1-1001 (5).

(b) This subsection (8) shall be known and may be cited as “Vonnie’s law”.

(9) When a violation under this section is committed in connection with a violation of a court order, including but not limited to any protection order or any order that sets forth the conditions of a bond, any sentences imposed pursuant to this section and pursuant to section 18-6-803.5 or any sentence imposed in a contempt proceeding for violation of the court order shall be served consecutively and not concurrently

Counterman v. Colorado And It’s Impact

In 2023, the U.S. Supreme Court heard a case that came straight out of Colorado — Counterman v. Colorado. Here’s why it matters.

The Facts: Defendant Counterman sent hundreds of Facebook messages to a Colorado musician he’d never met. She blocked him repeatedly; he created new accounts and kept messaging. Some messages talked about violence. She was genuinely scared and had to change her life — she stopped going out alone, canceled performances, and withdrew socially.

Counterman was convicted and sentenced to 4.5 years in prison.

The Problem: The Protections Of The First Amendment Were Not Followed In The Counterman Case

Colorado’s courts had convicted Counterman based on a simple test: would a reasonable person view his messages as threatening?

Before Counterman was decided. if the answer was yes, he was guilty. The defendant’s state of mind — whether he understood the messages were threatening, or even cared — didn’t matter. The Supreme Court held this was a violation of the First Amendment’s right to free speech.

The Court recognized that an objective-only test — “what would a reasonable person think?” — casts a dangerously wide net.

As written, Colorado’s stalking law, C.R.S. § 18-3-602 could criminalize someone who genuinely didn’t understand their words would be perceived as a threat, and that chills free speech. People become afraid to say anything that might be misunderstood and punished in criminal court.

What the Counterman Court Did To Modify The Law

After Counterman, the prosecution must now has to prove something about your state of mind — not just how the other person received your words.

Specifically, the government must show you acted with recklessness. That legal term means:

•The accused was aware that other people could interpret your statements as threats of violence, and

• The threats were then sent anyway, disregarding the risk.

The standard after Counterman is not as demanding as proving you intended to threaten someone. But it’s more protective of speech than the prior “reasonable person” test.

Bottom line: Your defense now has a foothold. Evidence about what you understood, what you were thinking, and what warnings you’d received is now directly relevant to the case.

A Closer Look At How This Affects Persons Charged With Colorado Stalking Charges?

If You’re Charged with Making a “Credible Threat” (Subsections a or b)

The short answer is it depends on which version of the stalking charge you’re facing. Counterman applies only to speech-based prosecutions, not conduct-based stalking.

This is important —in speech-based prosecutions for stalking the prosecution has to prove you actually knew or understood you were making a threat. That’s a good opening for your defense if you can show you were joking, using hyperbole, or genuinely didn’t realize your words would be interpreted as threatening.

The Colorado Court of Appeals has made clear that Counterman’s recklessness requirement is triggered only when a stalking charge is premised on the content of a defendant’s communications. Where a stalking prosecution rests instead on physical acts — approaching, following, or otherwise contacting the victim — the First Amendment is not implicated at all, because the charge “is not premised on the content of the defendant’s speech or expressive conduct.”

If You’re Charged Under The “Emotional Distress” Version (Subsection c)

This section c prosecution is the broadest stalking provision, and it’s where Counterman hits the hardest. The prosecution can’t just show your messages upset the other person and call it a day. They have to prove you knew — or consciously disregarded a substantial risk — that your repeated contact would be perceived as threatening.

That opens the door to a defense based on your own state of mind. Were you genuinely confused about whether your contact was welcome? Did you have a different understanding of your relationship? Were you trying to work something out, not threaten? Did someone tell you to stop and you didn’t hear it?

These questions now matter in a way they didn’t before Counterman.

What Does This Mean To A Defense Against Stalking Charges

If you’re facing a stalking charge grounded in messages or words, here’s what you should know:

After Counterman, your intent, awareness, and understanding are now directly at issue in the government’s attempt to prove your guilt of the crime of stalking.

The prosecution can no longer hide behind what “a reasonable person would think this was a threat.”

They have to show something about what you knew or disregarded. That shifts the focus — and often the advantage — to the defense.

Evidence about your state of mind becomes crucial.

This kind of evidence includes:

•What you understood about the relationship between you and the other person.
•Whether you’d received clear warnings to stop contact (or unclear ones).
•Your intent when sending each message.
•Prior misunderstandings between you.
•The context and tone of your communications.
•Expert evidence about how your words might be interpreted differently than they were received.

The prosecution’s burden is now much heavier.

They can’t just ask a jury, “Would you be scared?”

The Government must now prove you subjectively understood the risk your words posed.

Counterman doesn’t invalidate Colorado’s stalking law or give you a free pass if you’ve been sending repeated threatening messages. It does mean a prosecution based solely on how someone else felt about your words faces serious constitutional headwinds.

Why This Matters

Stalking convictions carry heavy consequences. A felony on your record affects employment, housing, professional licenses, gun rights, and custody. Being charged with stalking is serious.

But so is the First Amendment. C ounterman is a reminder that the government can’t criminalize speech just because it’s unwelcome, upsetting, or even scary to the listener — not without proving something about the speaker’s own knowledge and state of mind.

If you’ve been charged with stalking in Colorado, you need a defense attorney who understands both the statute’s ins and outs and how Counterman changes the landscape. The outcome often turns on exactly what you knew, what you understood, and what the other person actually told you — questions that Counterman has now placed front and center.

What Should You Do Now?

If you’re facing a stalking charge:

Don’t discuss the case with anyone but your attorney. Anything you say can and will be used against you, and written statements are particularly damaging.

Gather evidence about your state of mind. Collect all messages, emails, and communications — even ones that make you look bad. Your attorney needs the full picture. Also note any statements or warnings you received (or didn’t).

Be honest with your attorney about everything. They’re bound by attorney-client privilege and need to know the truth to build the strongest defense.

Understand that Counterman is still being applied. Colorado courts are still working out the details. Your attorney should be up to speed on the latest case law and how it applies to your specific facts.

A Deeper Dive – The Core Holding of Counterman

Counterman v. Colorado arose from a Colorado prosecution under the state’s stalking statute, section 18-3-602(1)(c), C.R.S., which criminalizes repeated communications that would cause a reasonable person to suffer serious emotional distress.

The Colorado courts had applied a purely objective test — whether an “intended or foreseeable recipient would reasonably perceive the statement as a serious expression of intent to commit an act of unlawful violence” — with no inquiry into the speaker’s own state of mind.

The Supreme Court held that this objective standard violates the First Amendment. As one Colorado appellate court summarized, the Court “hold[s]… that the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements,” and further held “that a mental state of recklessness is sufficient,” meaning the prosecution must show “the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

In the threats context, recklessness means the speaker “is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway.'”

Practical Takeaways After Counterman

For stalking or threat charges resting on the content of communications under section 18-3-602(1)(c), the prosecution must now prove the defendant recklessly disregarded a substantial risk that the statement would be viewed as threatening — a subjective element that did not previously exist in Colorado’s pattern instructions and must generally be added or specifically argued to the jury post-Counterman.

Defense counsel litigating true-threats issues arising before mid-2023 should scrutinize whether the jury was instructed only on the now-invalidated objective “reasonable person” standard, which several Court of Appeals panels have found reversible error. Conversely, where the charge is grounded in physical, content-neutral conduct, or where the underlying statute already requires “knowing” or “intentional” conduct, Counterman largely does not change the analysis.

Colorado Criminal Law – Colorado Stalking Charges And The First Amendment – What You Need to Know Now

The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes occurring after it was uploaded.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at: hmsteinberg@hotmail.com

A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

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Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.