Counterman v. Colorado
600 U.S. 66 (2023)
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Rule of Law:
The First Amendment requires the state in a true-threats prosecution to prove the defendant had some subjective understanding of the threatening nature of their statements. A mental state of recklessness—consciously disregarding a substantial and unjustifiable risk that the communication would be viewed as threatening violence—is sufficient to meet this requirement.
Facts:
- From 2014 to 2016, Billy Counterman sent hundreds of unsolicited Facebook messages to C.W., a local musician.
- Counterman and C.W. had never met, and C.W. never responded to any of his messages.
- When C.W. blocked Counterman, he would create new accounts to resume sending messages.
- Some messages suggested Counterman was surveilling C.W., such as asking, "Was that you in the white Jeep?".
- Several messages expressed anger and envisaged violent harm to C.W., including statements like "Staying in cyber life is going to kill you" and "Die."
- As a result of the messages, C.W. feared for her life, suffered severe anxiety, and altered her daily life by stopping walking alone, declining social engagements, and canceling performances.
Procedural Posture:
- The State of Colorado charged Billy Counterman in state trial court with stalking under a statute prohibiting repeated communications that would cause a reasonable person serious emotional distress.
- Counterman moved to dismiss the charge on First Amendment grounds, arguing his messages were not 'true threats.'
- The trial court denied the motion, applying an objective 'reasonable person' standard to determine if the messages were true threats.
- Following a trial, a jury found Counterman guilty.
- Counterman, as appellant, appealed to the Colorado Court of Appeals, arguing the First Amendment requires the state to prove his subjective intent to threaten.
- The Colorado Court of Appeals affirmed the conviction, holding that an objective standard was sufficient and no proof of subjective intent was required.
- The Colorado Supreme Court denied review.
- The United States Supreme Court granted Counterman's petition for a writ of certiorari.
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Issue:
Does a state's prosecution of an individual for making a 'true threat' under a purely objective 'reasonable person' standard, without requiring any proof of the speaker's subjective mental state, violate the First Amendment's free speech protections?
Opinions:
Majority - Justice Kagan
Yes, prosecuting a speaker for a true threat under a purely objective standard violates the First Amendment. To avoid chilling protected speech, the state must prove that the defendant had a culpable mental state, and a standard of recklessness is sufficient. The existence of a threat is determined objectively by what the statement conveys, but to prevent self-censorship of non-threatening speech, the First Amendment requires a 'buffer zone' created by a subjective mens rea requirement. This approach is consistent with precedent in other areas of unprotected speech like defamation and obscenity, which require a showing of the defendant's mental state. A recklessness standard, which requires the defendant to have consciously disregarded a substantial risk that their words would be viewed as threatening, appropriately balances the need to protect free expression with the state's interest in preventing the harms caused by true threats without making prosecutions prohibitively difficult.
Concurring in part and concurring in the judgment - Justice Sotomayor
Yes, a subjective mens rea is required, and recklessness is sufficient for this specific case involving stalking. However, the Court should not have decided that recklessness is sufficient for all true-threats prosecutions generally. History and precedent, particularly Virginia v. Black, suggest that the category of 'true threats' has traditionally required intent—the desire to threaten or substantial certainty that the words would be understood as a threat. A recklessness standard is too low for prosecutions of isolated 'pure speech' and risks chilling heated political discourse and enabling discretionary enforcement. Because this case involves a course of stalking conduct, not just a single utterance, the lessened First Amendment concerns make a recklessness standard amply sufficient here.
Dissenting - Justice Barrett
No, an objective standard does not violate the First Amendment. True threats are an unprotected category of speech because of the objective harm and fear they cause, regardless of the speaker's subjective intent. The majority unjustifiably grants true threats preferential treatment, as nearly every other category of unprotected speech—such as fighting words, obscenity, and false commercial speech—may be regulated using an objective standard. The court's reliance on the defamation standard from New York Times v. Sullivan is misplaced because its rationale is specific to protecting public debate about public figures. An objective test, which requires considering the full context of the statement, already provides sufficient protection against chilling protected speech.
Dissenting - Justice Thomas
No. Joining Justice Barrett's dissent, an objective standard is constitutional. The majority's misplaced reliance on New York Times Co. v. Sullivan is unfortunate because that case represents a 'policy-driven decision masquerading as constitutional law' that broke from historical understanding. The Court should not extend this flawed, judge-made analysis to the separate area of true threats.
Analysis:
This decision resolves a significant circuit split by establishing a nationwide constitutional floor for the mental state required in true-threats prosecutions. By rejecting purely objective tests, the Court enhances protections for speakers, aiming to prevent the chilling of ambiguous or heated speech that is not intended to be threatening. However, by adopting a recklessness standard rather than a higher standard of purpose or knowledge, the Court seeks to preserve the government's ability to prosecute speakers who consciously ignore the dangerous nature of their communications. The ruling will require states that previously used objective standards to alter their prosecutorial strategies, focusing more on evidence of the speaker's subjective awareness of risk.
