COUNTERMAN v. COLORADO

Legal Principle at Issue

Does the First Amendment require proof that a defendant had some subjective understanding of the threatening nature of his statements to sustain a criminal conviction under a state’s anti-stalking statute?

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Reversed 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 which Justice Gorsuch joined in part. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion which Justice Thomas joined.

Facts/Syllabus

Billy Raymond Counterman, who is diagnosed with a mental illness, believed he was conversing with a musician via Facebook messages, though the musician never responded. From 2014-2016, he sent hundreds of Facebook messages to C.W., a local musician. Each time C.W. tried to block him, Counterman created a new Facebook account. Several of his messages envisaged violent harm. C.W. stopped walking alone, declined social engagements, canceled performances, and eventually contacted the authorities. Ultimately, the musician obtained a restraining order, and law enforcement arrested Counterman based on his messages, although he did not contact the musician while the restraining order was in effect. 

Counterman was charged under a Colorado statute making it unlawful to repeatedly make any form of communication with another person in a manner that would cause a reasonable person to suffer serious emotional distress, that does cause that person to suffer serious emotional distress. Counterman disclaimed any actual intent to make a threat, but the jury was instructed that his actual mental state was irrelevant and concluded that Counterman’s messages were threatening.

To stop the punishment and chilling of hyperbolic expression, including political speech, FIRE submitted an amicus curiae brief to the Supreme Court of the United States in the case of Counterman v. Colorado. FIRE’s brief argues that “true threats,” which are outside the First Amendment’s protection, should only be found where there is evidence of the speaker’s specific intent to threaten. The alternative — a general-intent standard — holds speakers accountable for their statements when they had no intention of causing harm, if a so-called “reasonable person” would deem the statements threatening. 

Importance of Case

The 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 FIRE 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.