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Supreme Court of the United States • 2023

Counterman v. Colorado

600 U.S. 66

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Takeaway

In short, Counterman holds that the First Amendment permits punishment of true threats only when the speaker at least recklessly disregards the substantial risk that the communication will be understood as threatening violence.

Background

From 2014 to 2016, Billy Counterman sent hundreds of unsolicited Facebook messages to C. W., a local singer whom he had never met. C. W. never responded and repeatedly blocked him, but Counterman created new accounts and resumed contacting her. Some messages were ordinary in isolation, while others suggested surveillance or imagined violence, including statements such as “Staying in cyber life is going to kill you” and “Die.” C. W. became fearful, changed her routines, stopped walking alone, withdrew from social events, and canceled performances.

Colorado charged Counterman under its stalking statute for repeatedly communicating with another person in a way that would cause a reasonable person serious emotional distress and did cause that distress. The prosecution relied solely on the Facebook messages. Under Colorado law, the trial court applied an objective true-threat standard: whether a reasonable person would view the messages as threatening. It did not require proof that Counterman understood their threatening character. A jury convicted him, and the Colorado Court of Appeals affirmed. The Colorado Supreme Court denied review.

Issues

Issue #1

Whether the First Amendment requires a subjective mental-state showing in a prosecution for true threats of violence.

Holding

Yes. The State must prove that the defendant had some subjective understanding of the threatening nature of the communication; an entirely objective reasonable-person standard is insufficient.

Reasoning

True threats are a historically unprotected category of speech. They are serious expressions conveying an intent to commit unlawful violence, and their harmful effects arise from what the words objectively communicate to their recipient: fear, disruption, and the possibility that violence will occur. But the fact that true threats are generally unprotected does not end the First Amendment inquiry.

The Court reasoned that an objective liability rule risks chilling protected speech. Speakers may avoid forceful, emotional, joking, hyperbolic, or otherwise ambiguous speech because they fear that a listener, prosecutor, or jury will mistakenly classify it as a threat. Requiring proof of a culpable mental state gives protected speech needed breathing room by reducing the danger that a speaker will be punished for an inadvertent misunderstanding.

The Court drew support from its treatment of other unprotected-speech categories. Defamation law protects some false speech through an actual-malice requirement; incitement requires intent to produce imminent lawless action; and obscenity doctrine requires scienter concerning the character and nature of distributed material. Those rules show that the First Amendment can require a subjective element even when the underlying speech category is ordinarily unprotected.

Issue #2

Whether the First Amendment requires purpose or knowledge that a statement will be understood as threatening, or whether recklessness is enough.

Holding

Recklessness is sufficient. The State must prove that the defendant consciously disregarded a substantial and unjustifiable risk that the communication would be viewed as a threat of violence.

Reasoning

The Court distinguished among the relevant mental states. A purposeful speaker desires that the statement be taken as a threat, and a knowing speaker is practically certain it will be taken that way. A reckless speaker, by contrast, is aware of a substantial risk that others will regard the statement as threatening and sends it anyway. Negligence is inadequate because it asks only what the speaker should have realized, rather than what the speaker actually understood.

Recklessness appropriately balances free-expression interests against the serious harms caused by threats. A purpose-or-knowledge standard would make prosecution substantially harder, even for speakers who consciously accepted a serious risk of frightening or endangering another person. Recklessness still excludes merely careless or inadvertent speech while permitting punishment of morally culpable risk-taking.

The Court found defamation doctrine especially instructive because New York Times Co. v. Sullivan uses recklessness to protect speech while accommodating important countervailing interests. The Court declined to import incitement's more demanding intent requirement, explaining that incitement is often close to core political advocacy and carries a distinctive history of governmental suppression. Speech near the true-threat boundary generally does not require the same heightened protection.

Issue #3

Whether Counterman's conviction, obtained under Colorado's objective true-threat standard, complied with the First Amendment.

Holding

No. Colorado's standard was unconstitutional because it allowed conviction without proving that Counterman consciously disregarded the risk that his messages would be understood as threatening violence.

Reasoning

Colorado required only that a reasonable person would understand Counterman's messages as threatening. The prosecution did not have to establish that Counterman was aware of a substantial risk that C. W. or another recipient would view his statements as threats. That objective-only approach amounted to negligence, which the First Amendment does not permit in a true-threat prosecution.

The Court therefore vacated the Colorado Court of Appeals' judgment and remanded for proceedings consistent with the recklessness standard. The Court did not itself decide whether the evidence could establish Counterman's recklessness under that standard.

Concurrences

Justice Sotomayor

Reasoning

Justice Sotomayor agreed that Counterman's conviction could not stand and that recklessness was sufficient in this stalking case. Justice Gorsuch joined Parts I, II, III-A, and III-B of her opinion. In her view, Counterman's repeated, unwanted, direct contacts with C. W. made this a stalking prosecution rather than a case involving only a single act of pure speech. That setting presents fewer First Amendment concerns, so recklessness adequately supports punishment here.

She would not have decided the broader question whether recklessness is sufficient for all true-threat prosecutions. Neither party had advocated that standard, the lower courts had not resolved the question, and the case could be decided more narrowly because repeated stalking conduct may be regulated without relying solely on the true-threat exception.

Justice Sotomayor maintained that the proper first question is the constitutional scope of the historically narrow category of true threats. Reading Virginia v. Black and historical threat statutes together, she concluded that true threats traditionally involve intentional threatening: the speaker either desires to threaten or knows that the communication will be understood as threatening. In her view, recklessness is not part of the historically established definition of a true threat.

She warned that a general recklessness rule could expose heated political rhetoric, artistic expression, online speech, and speech from marginalized communities to criminal punishment based on shifting social norms and a jury's assessment of risk. She also argued that the rule could undermine incitement protections by allowing prosecutors to recast rhetoric that is not intentionally directed to imminent lawless action as a reckless threat.

If the Court had reached the general true-threat question, Justice Sotomayor would have required purpose or knowledge. At a minimum, she suggested that recklessness should demand a high degree of awareness that the statement was probably threatening, analogous to the demanding form of reckless disregard used in defamation cases.

Dissents

Justice Thomas

Reasoning

Justice Thomas joined Justice Barrett's dissent in full. He wrote separately to object to the majority's reliance on New York Times Co. v. Sullivan as a model for selecting a constitutional mens rea rule.

In Justice Thomas's view, Sullivan and its extensions were policy-driven rules rather than conclusions compelled by the First Amendment's original meaning. Because he believes that the Court should reconsider that defamation doctrine, he objected to extending its recklessness framework into the separate field of true threats.

Justice Barrett

Reasoning

Justice Barrett concluded that Colorado's objective standard was constitutional. True threats, she reasoned, are excluded from First Amendment protection because of the objective harm they inflict—the fear of violence, disruption, and risk that violence will occur—not because of the speaker's subjective state of mind. Once a speaker knowingly utters words that a reasonable person would understand as a serious threat of unlawful violence, the First Amendment permits regulation.

She rejected the majority's creation of a constitutional buffer zone for threats. In her view, most other categories of unprotected speech can be regulated using objective standards. Fighting words and deceptive commercial speech are judged objectively, and obscenity law requires knowledge of a work's contents rather than awareness that others will deem it obscene. Defamation's actual-malice requirement is a special rule designed to protect criticism of public officials and public figures, not a general model for all unprotected speech.

Justice Barrett distinguished incitement because it is closely connected to political advocacy at the center of First Amendment protection. Targeted threats of violence, by contrast, do not generally share that relationship to public debate. She also argued that true-threat doctrine already includes substantial safeguards: the statement must express an intent to commit unlawful violence against a particular person or group, and courts must evaluate the full factual context, including the speaker, audience, medium, tone, and surrounding exchange.

She found no historical basis for treating subjective awareness as a constitutional minimum, and none for the Court's particular choice of recklessness. The Court's rule, she argued, rests on an ungrounded policy judgment that recklessness is “just right,” even though legislatures are better positioned to calibrate mental-state requirements for different contexts.

Finally, Justice Barrett emphasized that the holding reaches beyond criminal prosecutions. By constitutionalizing a recklessness requirement, the Court also restricts civil protective orders, civil enforcement actions, and potentially school or workplace responses to threats. In her view, that result leaves victims less protected from threats of physical violence without constitutional justification.