Counterman v. Colorado
Overview
Overview
Counterman v. Colorado (2023) held 7-2 that the First Amendment requires proof of subjective awareness of threatening nature before a defendant may be convicted of making a 'true threat.' The Court adopted a recklessness standard. The defendant must be shown to have consciously disregarded a substantial risk that his communications would be viewed as threatening. Rejecting both the objective-reasonableness standard and the full subjective intent standard.
The Facts
Facts
Billy Counterman sent thousands of Facebook messages to musician C.W. over two years, including statements suggesting he watched her and implying violence. Colorado prosecuted Counterman under a stalking statute requiring proof that a reasonable person would feel seriously alarmed. Counterman argued the First Amendment requires proof that he subjectively intended his messages as threats. The Colorado Supreme Court applied an objective test and upheld his conviction. The Supreme Court reversed.
The Issue
Issue
Whether, and to what degree, the First Amendment requires proof of a defendant's subjective mental state before he may be convicted for making a true threat under a state stalking or threatening communications statute.
The Rules
Rule
True threats. Statements where the speaker means to communicate a serious expression of intent to commit unlawful violence. Are unprotected by the First Amendment (Virginia v. Black, 2003). The question is what mental state is required: objective (how a reasonable person would understand the statement), subjective intent (the speaker meant to threaten), or subjective recklessness (the speaker consciously disregarded a substantial risk the statement would be seen as threatening).
The Application
Analysis
Counterman's years-long pattern of surveillance-themed and violence-implying Facebook messages to C.W. Presented threatening speech at the constitutional boundary. Colorado prosecuted under an objective standard requiring only proof that a reasonable person would be seriously alarmed, but the Supreme Court held that the First Amendment requires recklessness: conscious disregard of a substantial risk the messages would be perceived as threats. Applying this to Counterman's conduct means prosecutors must prove he was aware of and deliberately ignored the danger his messages posed, rather than relying solely on their objective character. A safeguard that preserves prosecution of genuinely threatening online behavior while protecting speech that is alarming without meeting the recklessness threshold.
The Conclusion
Conclusion
Decided June 27, 2023. The 7-2 ruling (Kagan writing) adopted recklessness as the constitutional floor for true-threat prosecutions, vacating Counterman's conviction and remanding for application of the correct standard. The decision provides some First Amendment breathing room for online speech while stopping short of requiring proof of specific intent to threaten. A significant balance point in the regulation of threatening online communications.
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