Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment

justices raising the bar for establishing when a statement is a “true threat” not protected by the 1st Amendment.

Holding: To establish that a statement is a “true threat” unprotected by the First Amendment, the state must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.

Judgment: Vacated and remanded, 7-2, in an opinion by Justice Kagan on June 27, 2023. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined as to Parts I, II, III-A, and III-B. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion, in which Justice Thomas joined.

Washington — The Supreme Court on Tuesday sided with a Colorado man who was convicted of a crime after sending numerous threatening messages to a woman on Facebook, with the justices raising the bar for establishing when a statement is a “true threat” not protected by the First Amendment.

The high court divided 7-2 in the case of Counterman v. Colorado, with Justices Clarence Thomas and Amy Coney Barrett in dissent. The court wiped away a Colorado Court of Appeals’ ruling that upheld the conviction of Billy Counterman and sent the case back for further proceedings consistent with its opinion.

Writing for the majority, Justice Elena Kagan said prosecutors must demonstrate that a defendant who made a threat acted recklessly — that is, with the knowledge that others could regard their statement as threatening violence — to establish that the speech is a “true threat” and thus no longer covered by the First Amendment.

“The question presented is whether the First Amendment still requires proof that the defendant had some substantive understanding of the threatening nature of his statements,” she wrote. “We hold that it does, but that a mental state of recklessness is sufficient. The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

Counterman was prosecuted under a standard requiring the state to show only that a “reasonable person” would understand the messages as threats. The majority found that violated the First Amendment.

“[The state] did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment,” Kagan wrote.

In a dissenting opinion written by Barrett, which Thomas joined, the justice said the majority’s decision “unjustifiably grants true threat preferential treatment.”

“A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her,” Barrett wrote.

Counterman, she concluded, “communicated true threats” and caused the recipient of the messages, a singer-songwriter named Coles Whalen, to fear for her life.

“Nonetheless, the court concludes that Counterman can prevail on a First Amendment defense,” Barrett said. “Nothing in the Constitution compels this result.”

The case arose from hundreds of Facebook messages Counterman sent to Whalen between 2014 and 2016. Some of the messages were innocuous, while others were more troubling. Whalen tried to block Counterman, but he created multiple accounts to continue sending them. 

In one, Counterman wrote, “F**k off permanently,” while in another, he wrote, “I’ve tapped phone lines before. What do you fear?” According to court filings, a third read, “You’re not being good for human relations. Die. Don’t need you.”

Whalen believed Counterman’s messages were threatening her life and she was worried she would get hurt. She had issues sleeping, suffered from anxiety, stopped walking alone and even turned down performances out of fear that Counterman was following her.

She eventually turned to the authorities and obtained a protective order, after which Colorado law enforcement arrested Counterman and charged him with stalking under a Colorado law that prohibits “repeatedly making 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.”

Conviction under the law requires proof that the speaker “knowingly” made repeated communications, and does not require the person to be aware that the acts would cause “a reasonable person to suffer serious emotional distress.”

Before his trial, Counterman sought to dismiss the charge, arguing that his messages were not “true threats” and therefore protected speech under the First Amendment. But the state trial court found that his messages reached the level of a true threat, and the First Amendment did not preclude his prosecution. A jury then found Counterman guilty, and he was sentenced to four-and-a-half years in prison.

Counterman appealed, arguing the trial court erred when it applied an objective standard for determining whether his messages constituted true threats. He said the court should instead adopt a “subjective intent” requirement, which required the state to show he was aware of the threatening nature of his communications.

But the Colorado Court of Appeals upheld his conviction and agreed with the trial court’s finding that Counterman’s Facebook messages were “true threats” and not protected by the First Amendment. The state supreme court declined to review the case.

The ACLU, which filed a brief in support of Counterman, cheered the decision, saying in a statement that the high court affirmed that “inadvertently threatening speech cannot be criminalized.”

“In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received,” said Brian Hauss, senior staff attorney with the organization’s Speech, Privacy, & Technology Project. “The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

ACLU Commends Supreme Court Decision to Protect Free Speech in Case Defining True Threats

In Counterman v. Colorado, the court ruled that the First Amendment requires the government to show recklessness in true threats prosecutions.

WASHINGTON – The Supreme Court ruled today in Counterman v. Colorado that in true threats cases the First Amendment requires the government to prove that the defendant acted with a culpable mental state, and not merely that his words were objectively threatening.

Colorado law allowed individuals to be convicted if a reasonable person would perceive their words as threatening, regardless of the speaker’s intent. Today’s decision rules that the First Amendment requires the government to show at a minimum that the defendant recklessly disregarded a substantial risk that his words could be perceived as threatening. The court holds that a recklessness standard strikes the right balance between free expression and safety, “offering ‘enough “breathing space” for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.”

“We’re glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized,” said Brian Hauss, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, & Technology Project. “In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received. The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

This case involved a series of disturbing messages that the petitioner, Billy Raymond Counterman, sent to C.W., a professional musician in Colorado, over a two-year period. Counterman was prosecuted and convicted under Colorado’s anti-stalking statute. On appeal, Counterman — who has been diagnosed with a mental illness — argued that his conviction was unconstitutional because the jury was not required to find that he intended to threaten C.W.

The ACLU and its partners filed an amicus brief in the case arguing that a great deal of speech — including political speech, satire, and artistic speech — contains overt or implicit references to violence that could be interpreted as threatening. Without requiring some element of intentional wrongdoing, the ACLU argued, there exists a significant risk that people will be convicted of serious felonies because they failed to adequately anticipate how their words would be perceived.

Counterman v. Colorado is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket. The amicus brief was filed with the ACLU of Colorado, the Abrams Institute for Freedom of Expression, the National Association of Criminal Defense Lawyers, and the National Coalition Against Censorship.

Supreme Court Decides Counterman v. Colorado

On June 27, 2023, the U.S. Supreme Court decided Counterman v. Colorado, No. 22-138, holding that a criminal prosecution based on a true threat of violence requires proof that the defendant subjectively understood the threatening character of the statement such that making the statement was at least reckless.

Between 2014 and 2016, Billy Counterman persistently sent hundreds of unwelcome messages through Facebook to a local musician, creating new accounts to circumvent her attempts to block them. The musician interpreted many of the messages as indicators that Counterman was surveilling her and intended to harm her. Colorado state prosecutors criminally charged Counterman for his behavior, and the Facebook messages themselves were the only evidence presented at trial. Counterman claimed his messages fell within the protections of the First Amendment because they could not be “true threats” if he did not have a subjective understanding that the messages were threatening. The Colorado trial and appellate courts rejected his argument and ruled that “true threats” were subject only to an objective reasonableness standard.

The Supreme Court reversed. While the Court agreed that “true threats of violence” are not protected speech under the First Amendment, the Court held that a court must apply a subjective test to determine if a statement is in fact a true threat of violence. The Court held that this subjective standard is required to avoid a chilling effect on otherwise protected speech. The Court noted that the “ordinary citizen’s predictable tendency” is to steer very wide of speech that may be considered unlawful. The Court held that a subjective standard was necessary to balance the public interest in avoiding unnecessary chilling of lawful speech and the ability of prosecutors to criminally charge defendants for unlawful speech.

The Court then analyzed what level of subjective knowledge is sufficient to accomplish that balance. The Court compared the law governing other non-protected classes of speech, including defamation, and determined that a reckless state of mind is sufficient—i.e., a defendant who consciously disregards a substantial risk that statements would be understood as a true threat may be prosecuted. The Court also concluded that any mens rea requirement higher than recklessness—like purpose or knowledge—would make prosecution too difficult, and “with diminishing returns for protected expression.” To balance the risk of chilling public speech and the need to be able to prosecute true threats of violence, the Court ruled that prosecutors must prove that defendants recklessly made threatening statements.

Justice Kagan authored the opinion of the Court. Justice Sotomayor authored a concurrence in which Justice Gorsuch joined in part. Justice Thomas authored a dissent. Justice Barrett authored a dissent in which Justice Thomas joined.

This Report summarizes an opinion issued on January 23 (Part I); and cases granted review on December 27, 2022, and January 13, 2023 (Part II).

Opinion: Counterman v. Colorado, 22-138

Counterman v. Colorado, 22-138. The Court will clarify the standard for determining whether a statement is a true threat unprotected by the First Amendment. Most federal courts of appeals apply an objective test that asks whether a reasonable person would interpret the statement as a threat of violence. By contrast, the Ninth and Tenth Circuits employ a subjective test that asks whether the speaker intended the recipient to feel threatened. State courts are similarly divided, with some applying a hybrid test that considers both the speaker’s subjective intent and whether a reasonable person would view the statement as a threat. This is the second time that the Court has agreed to address this split. The issue was presented in Elonis v. United States, 575 U.S. 723 (2015), but the Court ultimately resolved that case on a different basis.

The issue here arises in the context of a criminal prosecution for stalking. Over the course of two years, petitioner Billy Raymond Counterman directly messaged a local musician on Facebook without invitation or response. Some of the messages suggested that he was physically surveilling her, while others told her to “Die” and “Fuck off permanently.” Counterman’s messages caused the victim to fear for her safety, so she told her family and police. Relying on 17 messages, Colorado charged him with stalking. Under Colorado law, prosecutors did not need to prove that Counterman intended his statements to be threatening or that he was aware that they could be interpreted that way. Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not true threats and thus were protected speech. The trial court denied the motion and a jury found Counterman guilty of stalking. The Colorado Court of Appeals affirmed Counterman’s conviction. 497 P.3d 1039. In holding that Counterman’s statements were true threats subject to criminal prosecution, the Colorado Court of Appeals applied the objective test that asks whether a reasonable person would view the statements as threatening. The court of appeals rejected Counterman’s argument that a speaker’s subjective intent to threaten is necessary for a statement to constitute a true threat, noting that the Colorado Supreme Court recently rejected that rule absent further guidance from the U.S. Supreme Court. The Colorado Supreme Court later denied Counterman’s petition for review.

Relying on history, tradition, and U.S. Supreme Court precedent, Counterman argues in his petition that “heightened scienter is necessary to true threats.” He notes that, generally, consciousness of wrongdoing is required for a criminal conviction. A scienter requirement is especially important for a statute that regulates speech, Counterman contends, because convicting “a person for negligently misjudging how others would construe the speaker’s words would erode the breathing space that safeguards the free exchange of ideas.” Counterman submits that a purely objective test for true threats conflicts with the Court’s true threats jurisprudence, including Virginia v. Black, 538 U.S. 343 (2003). There, the Court stated that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Emphasis added.) Counterman relies on this language to argue that the Court has already imposed a heightened scienter requirement for true threats. He also points out that in incitement cases, the Court has required proof that the speaker intended to produce imminent disorder. See Hess v. Indiana, 414 U.S. 105, 109 (1973) (per curiam).

Colorado argues that its objective test for true threats is consistent with the Court’s free speech jurisprudence. It compares its “context-driven objective standard” to the Court’s analysis in Watts v. United States, 394 U.S. 705 (1969). There, in holding that the speaker’s comments at a rally were not true threats subject to criminal prosecution, the Court focused on the plain language of the statements, the context in which they were made, and the listeners’ reaction. Colorado’s test similarly examines “the contested expression’s context, including the listeners’ reaction.” In Colorado’s view, the Court in Black did not subsequently adopt a subjective-intent requirement for true threats. It reads Black as simply identifying one circumstance where a speaker makes a true threat, namely when he communicates with the intent to threaten the recipient. Colorado maintains that Black did not “state that true threats were limited to such statements.” Colorado also contends that an objective test is especially important to protect victims of stalking because stalkers may be delusional, thereby making it difficult for prosecutors to prove a subjective intent to threaten. And because its objective test considers the context in which the statements were made, Colorado submits that speakers will be protected from unfair punishment.

US Supreme Court makes decision on Counterman v. Colorado

WASHINGTON, D.C., USA — The Supreme Court ruled Tuesday to make it more difficult to convict a person of making a violent threat, including against the president or other elected officials.

The Biden administration had warned that the internet and social media have expanded the number and kinds of threats in recent years, including online harassment, intimidation and stalking. And they warned the case could affect the ability to prosecute threats against public officials, which have increased in recent years.

The high court was ruling in a case that involves a man who was sentenced to more than four years in prison in Colorado for sending threatening Facebook messages. The man’s lawyers had argued that he suffers from mental illness and never intended his messages to be threatening.

The question for the court was whether prosecutors must show that a person being prosecuted for making a threat knew their behavior was threatening or whether prosecutors just have to prove that a reasonable person would see it as threatening.

Justice Elena Kagan wrote for a majority of the court that prosecutors have to show that “the defendant had some subjective understanding of the threatening nature of his statements.”

“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” she said.

Seven justices agreed with the outcome. Two conservative justices, Clarence Thomas and Amy Coney Barrett, dissented.

The Biden administration had been among those arguing for the lower “reasonable person” standard.

“Threats of violence against public officials in particular have proliferated in recent years, including threats against Members of Congress, judges, local officials, and election workers,” the Biden administration had noted, saying the case could affect prosecutions in those cases.

Speech of all kinds is generally protected by the free speech clause in the Constitution’s First Amendment, but so-called “true threats” are an exception.

The specific case before the justices involved Billy Counterman. He contacted a musician through Facebook in 2010 to ask her whether she would perform in a benefit concert he said he was organizing. The woman, Coles Whalen, responded but nothing ever came of it.

Whalen forgot about the exchange, but four years later, Counterman began sending her Facebook messages again. He ultimately sent hundreds of messages, including ones that were rambling and delusional and others that were quotes and memes. Whalen never responded and blocked Counterman several times, but he would just create a new account and continue sending messages.

Counterman believed Whalen was responding through other websites and Facebook pages. Whalen became concerned after Counterman’s messages — including “You’re not being good for human relations. Die. Don’t need you.” and “Was that you in the white Jeep?” — suggested he was following her in person. Eventually, the messages were reported to law enforcement and Counterman was arrested. He was convicted and lost an appeal.

The justices’ ruling is a victory for Counterman and sends his case back to lower courts for another look. In a statement, his attorney John Elwood said that they are “gratified that the Supreme Court agreed with Billy Counterman that the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening.”

Colorado Attorney General Phil Weiser, whose office prosecuted Counterman, said in a statement that the decision will make it “more difficult to stop stalkers from tormenting their victims.”

“In today’s ruling, the Court creates a loophole for delusional and devious stalkers and misapprehends the very nature of threats faced by stalking victims,” Weiser said. “In short, this decision will make it more likely that victims of threats— mostly women — will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable.”

The case is Counterman v. Colorado, 22-138.

Opinion of the Court Counterman v. Colorado

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