Supreme Court Clarifies First Amendment Test for True Threats

In Counterman v. Colorado, 600 U.S. ____ (2023), the U.S. Supreme Court held that to establish that a statement is a “true threat” unprotected by the First Amendment, the state must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.

Facts of the Case

From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C.W., a local singer and musician. The two had never met, and C.W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C.W. Several of his messages envisaged violent harm befalling her.

Counterman’s messages put C.W. in fear and upended her daily existence: C.W. stopped walking alone, declined social engagements, and canceled some of her performances. C.W. eventually contacted the authorities. The State charged Counterman under Colo. Rev. Stat. §18–3–602(1)(c), a Colorado statute making it unlawful to “[r]epeatedly . . . make[ ] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.”

Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution. Following Colorado law, the trial court rejected that argument under an objective standard, finding that a reasonable person would consider the messages threatening. Counterman appealed, arguing that the First Amendment required the State to show not only that his statements were objectively threatening, but also that he was aware of their threatening character. The Colorado Court of Appeals disagreed and affirmed his conviction. The Colorado Supreme Court denied review.

Supreme Court’s Decision

The Supreme Court held that while the State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, the First Amendment requires no more demanding a showing than recklessness.

“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Justice Elena Kagan wrote. “The State need not prove any more demanding form of subjective intent to threaten another.”

In reaching its decision, the Court acknowledgedthat “true threats of violence” are not protected speech under the First Amendment. However, given that bans on speech have the potential to chill, or deter, speech outside their boundaries, it also emphasized that the First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability.

After rejecting the objective test advanced by the State of Colorado, the Court considered what type of subjective test to apply. It concluded that a recklessness standard—i.e., a showing that a person “consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another,”—is the appropriate mens rea. “That standard, again, is recklessness. It offers ‘enough ‘breathing space’ for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats,” Justice Kagan wrote. “As with any balance, something is lost on both sides: The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats. But in declining one of those two alternative paths, something more important is gained: Not ‘having it all’—because that is impossible—but having much of what is important on both sides of the scale.”