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  • Writer's pictureBennett Nuss

Counterman v. Colorado: 2022-23 Supreme Court Criminal Decisions

Updated: Oct 18, 2023

Counterman v. Colorado specifically dealt with the standard by which a criminal defendant can be found to have made a “true threat of violence,” overcoming First Amendment protections and resulting in criminal liability for the speaker.

From 2014 to 2016, Billy Counterman sent hundreds of Facebook messages to C.W., a local musician. The two were strangers, and C.W. attempted to block Counterman on multiple occasions, but to no avail. Many of the messages sent by Counterman indicated that he was stalking her and eventually expressed intent to hurt her. C.W. suffered serious anxiety from Counterman’s behavior, stopped going out in public alone and even cancelled performances. Eventually, C.W. contacted the authorities, who arrested Counterman under Colorado Revised Statute Section 18-3-602(1)(c), which makes it illegal to repeatedly make any form of communication in a manner that would and does cause a reasonable person to suffer serious emotional distress.

Counterman moved to dismiss the charge on First Amendment grounds, arguing that the messages were not “true threats” and thus were protected on free speech grounds. The trial court found that the State needed to prove that a reasonable, objective person would have viewed the messages as threatening and not just that Counterman had the intent to cause harm with his speech. The court ruled that the First Amendment was not a bar to prosecution in this case.

Counterman appealed this decision, and the Colorado Court of Appeals affirmed the decision of the trial court. After the Colorado Supreme Court denied review, Counterman appealed to the Supreme Court, who accepted certiorari. The court then had to decide two items: (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threat cases, and (2) if the First Amendment does require such proof, what mens rea standard is sufficient.

Justice Kagan wrote the opinion of the Court, joined by Chief Justice Roberts, along with Justices Alito, Kavanaugh and Jackson. Justice Kagan begins by reviewing the history of intent in free speech cases, in which the mindset of the defendant had traditionally required a subjective mindset intending to cause harm, such as in libel and defamation cases. However, in cases like incitement to violence and obscenity, the Court’s precedent indicates that the First Amendment does not protect all cases of speech that were not intended to actually cause harm but do end up manifesting a harm anyways. According to the Court majority, cases in which messages are being directly sent to another person to cause them reasonable fear is another of these instances where a lack of intent on the part of the sender can still result in legal liability despite the First Amendment.

Justice Kagan then moves to the appropriate mens rea to adjudge cases like this in the future. According to the Court, recklessness is the appropriate standard when trying true threat cases. If a reasonable person would know that their speech would result in another person rationally interpreting their words as a true threat, then the First Amendment does not protect their speech. According to Justice Kagan, such a standard adequately balances the free speech interests of every person while also providing reasonable protection to those who may be abusing their free speech to harass or threaten others.

The Court majority then remanded the case back to Colorado for proceedings commensurate with the opinion.

Justice Sotomayor wrote a concurrence in part for this case, joined by Justice Gorsuch. Her major concern, in this case, was the standard of recklessness as a required mens rea for a true threat prosecution. According to Justice Sotomayor, recklessness as a standard for prosecution is far too low a bar as a mens rea to adequately protect the free speech interests of defendants, and that something higher is needed to protect First Amendment rights. She fears that this low standard will result in a chilling effect on public speech; a private citizen could be sued for conduct that was once legally protected. Furthermore, Justice Sotomayor noted that this decision will necessarily call into question the mens rea requirements for other speech-related crimes, such as incitement to violence and obscenity, thus resulting in even further chilled speech in the public square.

Justice Barrett authored a dissent, joined in full by Justice Thomas. Justice Barrett highlighted that the recklessness standard was inappropriate for this case and that true threats are more analogous to incitement to violence than defamation. Thus, the standard should be analogous to the former rather than the latter. To succeed in an incitement to violence prosecution, the prosecutor must show that there was a specific intent to cause an unlawful or violent outburst in public. True threats traditionally require a showing of an intent to commit an unlawful act of violence. According to Justice Barrett, the Court majority’s reworked standard is incongruent with this traditional understanding of true threats and thus should be discarded.

Justice Thomas also wrote a brief dissent in the case, highlighting that the majority’s reliance on a defamation standard from New York Times v. Sullivan to do away with the subjective intent standard was a concerning departure from precedent, and should not have been spread into other areas of speech.

Justice Sotomayor’s prediction that it will be far easier for the state to accomplish prosecutions for true threats is a likely result from this decision. Counterman specifically dealt with online harassment, which is all too common in our social media age. There may be a reduction in such behavior due to the increased potentiality of prosecution. The extent to which this decision will impact social media moderation practices and state prosecution practices is yet to be seen. This decision is also likely to result in other cases pertaining to speech-related crimes, such as obscenity and incitement, to be tested against this new standard in the coming years, which may fundamentally change the free speech paradigm of the United States entirely.


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