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Written by Deborah W. Fisher, published on July 18, 2023 , last updated on June 16, 2024

Counterman v. Colorado (2023)

The U.S. Supreme Court in 2023 vacated the conviction of a man convicted of stalking Colorado musician Coles Whalen through online messages, saying that while "true threats" are not protected under the First Amendment's right to free speech, the state must prove the speaker had some awareness that his words might pose a risk of threatening someone. In Counterman v. Colorado, the high court established a new recklessness standard for true threat cases, staying the state must show that the person “consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” the ruling said. Photo of Coles Whalen with permission of Whalen.

In Counterman v. Colorado, 600 U. S. ____ (2023), the U.S. Supreme Court vacated the conviction of a man found guilty of stalking a female musician, ruling that the First Amendment’s protection of free speech requires that prosecutors show that he was aware of the threatening nature of his communications.

The ruling provided additional guidance on what constitutes a “true threat.” True threats are not protected speech under the First Amendment and thus can be subject to state criminal laws and regulation.

Court establishes recklessness standard in true threat cases



Justice Elena Kagan, in the 7-2 ruling, wrote that the state must require some level of culpable mental state for communication to be a true threat, but that a low level — recklessness in making the threat — is sufficient.

Under a recklessness standard, the state must prove that the person “consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” the ruling said.

The majority opinion was joined by justices John Roberts Jr., Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson. Justice Sonia Sotomayor wrote a concurring opinion, agreeing in part and in the judgment, joined in part by Justice Neil Gorsuch.  Justices Amy Coney Barrett and Clarence Thomas filed dissenting opinions.

Colorado had convicted Billy Raymond Counterman using an objective standard, which turns on how a reasonable person would view a statement in context and does not rely on proof of the speaker’s intent or awareness.

Counterman had sent numerous unanswered and increasingly disturbing messages over two years to musician Coles Whalen over Facebook. When she would block his messages, Counterman would create a new account and continue to send her messages. Several messages envisioned harm befalling her (“Staying in cyber life is going to kill you;” “You’re not being good for human relations. Die;” and similar sentiments.)

The high court pointed to its rulings in other true threat cases, Virginia v. Black and  Elonis v. United States, but said it did not in those cases decide whether the First Amendment required any showing of awareness or intent of a crime.

However, the high court reasoned, prosecutions for speech without establishing that a speaker had some consciousness of the crime could have a chilling effect on other speech.

“The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs — all those may lead him to swallow words that are in fact not true threats,” Kagan wrote.

Court: Other areas of unprotected speech require showing speaker’s mindset



The court noted that sometimes the mindset of a speaker is a determinant of whether speech is protected, providing “strategic protection” in prominent categories of otherwise unprotected speech.  It pointed to its landmark ruling in New York Times Co. v. Sullivan in which the court set a higher standard of proof for public figures to recover damages in a defamation case so as not to chill speech about public issues. In that case, the court established that a public figure must show that the speaker of the false and defamatory statement acted with “knowledge that it was false or with reckless disregard of whether it was false or not.”

The same idea arises in laws on obscenity and incitement to unlawful conduct, the court said.  For example, the First Amendment precludes punishment in incitement cases, whether civil or criminal, “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.” In obscenity cases, the punishment depends on the “the defendant’s awareness of ‘the character and nature’ of the materials he distributed,” the court said.

Courts weigh the mental state of individuals in different ways, depending on the law. The high court explained that the recklessness standard does not require a finding that the defendant meant to do harm or that he knew that the recipient of the communication would actually feel threatened.

The recklessness standard only “involves insufficient concern with risk rather than awareness of impending harm,” the ruling said. “(I)t means that a speaker is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway,” the court said, quoting Elonis v. United States, a 2015 case that also involved threats on social media.

The ruling remanded the case for further proceedings, which means Counterman may still be found guilty of stalking if sufficient proof is demonstrated.

Sotomayor concerned new standard will overcriminalize speech



Justice Sotomayor in her concurrence said that she would not have reached the question of the level of mens rea sufficient for true-threats prosecutions generally.

Sotomayor was less concerned about the ability for a conviction in a stalking case, which involves behavior often irrelevant to the content of the stalker’s speech, and was more concerned that the court was creating a new standard that was too low and would criminalize speech in a broader range of cases.

“The risk of overcriminalizing upsetting or frightening speech has only been increased by the internet,” Sotomayor wrote.

“Without sufficient protection for unintentionally threatening speech, a high school student who is still learning norms around appropriate language could easily go to prison for sending another student violent music lyrics, or for unreflectingly using language he read in an online forum,” she wrote.

Barrett dissent takes issue with replacing objective test for assessing true threats



Justice Barrett dissented, seeing no need to raise the standard for laws that punished true threats. She rejected that a “buffer zone” was needed for true threats to prevent chilling other speech. “True threats carry little value and impose great costs,” she said.

She also pointed to other speech that the high court has allowed to be regulated on an objective review without taking into account a speaker’s intention or state of mind. For example, the court has ruled that government may prevent the dissemination of commercial speech that is false, deceptive or misleading without regard to whether the speaker knew the recipient would be deceived or misled, she wrote.

She criticized the majority for depending on a “single, cherry-picked strand of doctrine” in New York Times Co. v. Sullivan. While public figures and officials must show actual malice in a defamation case, “(t)hat is not the full story,” she said. “A private person need only satisfy an objective standard to recover actual damages for defamation.”

Justice Thomas in his dissent questioned the soundness of the New York Times v. Sullivan ruling, repeating concerns he has raised in other rulings. “Like the majority’s decision today, ‘New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.'”

The majority opinion acknowledged that its decision did not give everyone what they wanted. But it said the recklessness standard offers enough breathing space for protected speech “without sacrificing too many of the benefits of enforcing laws against true threats.”

“The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats. But in declining one of those two alternative paths, something more important is gained: Not ‘having it all’ — because that is impossible — but having much of what is important on both sides of the scale,” Kagan wrote.

This article was published June 28, 2023. Deborah Fisher is director of the John Seigenthaler Chair of Excellence in First Amendment Studies.

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