When a Patient Harasses a Medical Practice, What are the Options?

We all periodically blow off steam. In a high stress medical practice, not all patients are delighted with their care. Or service. Or cost. Or parking. The list is long. They may make their unhappiness known by raising their voice in person or on the phone. Writing rotten reviews. And more.  

Often the problem is solved, and the anger subsides.  

Or the frequency and intensity of the anger mitigates. 

But not always. 

A patient may picket in front of a practice with a sign. Or send threatening messages causing staff and providers to fear for their safety. Many states implemented cyberstalking laws to provide a remedy to the perceived problem.  

A Colorado statute makes it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. §18–3–602(1)(c). 

In 2023, the US Supreme Court ruled on a case where this Colorado statute was tested. SCOTUS was trying to find the proper balance between what was allowed under the First Amendment versus prohibited in the context of threats that could form the basis for a criminal prosecution.  

This case dated back to 2014 to 2016.  

From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged violent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined social engagements, and canceled some of her performances. C. W. eventually contacted the authorities.   

Colorado charged Counterman under the above-mentioned cyber-stalking statute.  

Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution. Following Colorado law, the trial court rejected that argument under an objective standard, finding that a reasonable person would consider the messages threatening. Counterman appealed, arguing that the First Amendment required the State to show not only that his statements were objectively threatening, but also that he was aware of their threatening character. The Colorado Court of Appeals disagreed and affirmed his conviction. The Colorado Supreme Court denied review. 

The US Supreme Court threw out the conviction (Counterman was previously sentenced to 4 ½ years of prison). The question was whether Counterman statements were “true threats.” True threats are not protected by the First Amendment. 

Instead of focusing on whether a reasonable person would regard the man’s statements as a threat of violence, the Supreme Court ruled, courts should look at whether prosecutors had shown that Counterman had made the threats recklessly that is, whether he was aware that the recipient, local Colorado musician Coles Whalen, could regard his speech as a threat, but made them anyway. 

The reasonable person standard is an objective test. 

SCOTUS ruled that a subjective test – what was the perpetrator’s state of mind – is the proper test.  

Kagan declined to adopt the objective standard proposed by Colorado, and on which the state courts relied to convict Counterman. Using an objective standard, she explained, that looks only at how reasonable observers would construe a statement in context, would also suppress speech that was not a true threat, because people would not want to run the risk that their non-threatening speech would be misunderstood, leading to jail time. 

A subjective standard is the proper test, Kagan concluded but which one? She concluded that a recklessness standard, which for cases involving true threats means that a speaker is aware that others could regard his statements as threatening violence and delivers them anyway, is most appropriate. Such a test, she reasoned, strikes the proper balance between avoiding suppressing non-threatening speech, on the one hand, and on the other hand allowing states to effectively protect against the profound harms that can flow from true threats. 

From the opinion: 

In this context, a recklessness standard—i.e., a showing that a person “consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another,” Voisine v. United States, 579 U. S. 686, 691—is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats—with diminished returns for protected expression. Using a recklessness standard also fits with this Court’s defamation decisions, which adopted a recklessness rule more than a half-century ago. The Court sees no reason to offer greater insulation to threats than to defamation. While this Court’s incitement decisions demand more, the reason for that demand—the need to protect from legal sanction the political advocacy a hair’s-breadth away from incitement—is not present here. For true threats, recklessness strikes the right balance, offering “enough ‘breathing space’ for protected speech,” without sacrificing too many of the benefits of enforcing laws against true threats. Elonis, 575 U. S., at 748. The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman’s part of his statements’ threatening character. That is a violation of the First Amendment. 

The irony in Counterman’s case is that SCOTUS took pains to prevent chilling otherwise protected speech. But here, the singer’s speech was chilled. She canceled shows. The ability of victims to speak freely will be chilled.  

The Court’s holding in Counterman may make it harder for states to prosecute stalkers, lessening protection for stalking victims. Without sufficient protection, the ability of victims to speak freely may be unduly chilled. Stalking via social media — including targeting an individual with persistent threats, as in this case — can “cause[] severe emotional distress or the fear of physical harm.” This abusive behavior “has a ‘totalizing and devastating impact’ upon victims,” causing a “profound ‘chilling effect’” on their speech.⁸¹ This chilling occurred in Counterman itself, as Whalen “started cancelling shows and stopped scheduling new ones” and her “joy of touring the country, playing music, and selling albums gave way to the terror inflicted by Counterman.” Because victims’ speech is chilled by the private actions of stalkers, not by state action, this chilling effect may be less salient for the Court, whose reach under the Constitution extends only to public actors. But, while the courts are not in a position to consider chilling caused by private actors, legislatures, like Colorado’s in this case, are well positioned to consider just such effects. The narrow nature of the chilling effect doctrine should make the Court pause before it employs the doctrine to protect speakers in situations where the potential consequences for victims are unclear to the Court or outside of its purview, as in Counterman. 

Ultimately, the Court should never have considered Counterman as a true-threats case. Regardless of whether chilling effects are a concern in the true-threats context, the chilling effect doctrine is questionable, at best, in stalking cases like Counterman. And countervailing chilling concerns — namely the chilling effects to victims of stalking — outweigh any possible chilling effect to the speech of stalkers, which tends not to be the type of speech at issue with isolated utterances or speech to groups of people. The Court should have allowed Colorado’s anti-stalking law and similar laws in other states to stand unabated. Its decision in Counterman puts protections for stalking victims at risk and may ultimately lead to less protected speech. 

Back to the original question. Can an angry patient be prosecuted under a state cyberstalking law? Maybe. But it has to be interpreted in the context of a true threat. Where the patient subjectively and consciously disregarded the risk of causing (even if emotional) harm to the intended recipient, and engaged in that conduct anyway. This is not an easy test to pass – particularly if the patient is angry and unaware of their actions and effects of their actions. But it is not an impossible threshold.  

What do you think?