FIRE statement on the Supreme Court decision in Counterman v. Colorado

Below is a statement from FIRE senior attorney Jay Diaz.

Today’s Supreme Court decision in Counterman v. Colorado is largely good news for the First Amendment because it sets a higher bar for punishing speech as a “true threat.” Fewer prosecutors will be able to criminalize speech tomorrow than was possible yesterday. 

As we urged in our amicus brief, the Court correctly rejected Colorado’s “objective” standard, holding that “true threat” convictions require proof that the defendant consciously disregarded a substantial risk that their speech would place another in fear of serious physical harm. That’s the right result. 

FIRE and other civil liberties organizations had also advocated for an even stricter First Amendment test beyond recklessness to ensure that Americans would not face prosecution for parody or political commentary that unintentionally seemed threatening to a “reasonable person.” While the Court did not adopt the stricter standard, we are heartened by the Court’s statement that hyperbole will not constitute a true threat and that recklessness sets a high bar for any prosecution.

FIRE will work tirelessly to ensure the true-threat standard announced today will not threaten protected speech.