by Richard Resch

The Supreme Court of the United States held that criminal liability for true threats, which are not protected by the First Amendment, requires proof that the defendant had a subjective understanding of the threatening nature of the statements and further held that a mental state of recklessness is sufficient because it provides enough breathing space for protected speech without sacrificing too many of the benefits of enforcing laws prohibiting true threats.

Billy Counterman sent hundreds of Facebook messages to a local singer and musician, C.W., over a two-year period despite the fact they had never met. C.W. did not respond to any of Counterman’s messages and blocked him numerous times, but he created new Facebook accounts and resumed sending her unwanted messages. The messages ranged from the mundane – “I am going to the store would you like anything?” – to the unsettling – “Fuck off permanently” and “Staying in cyber life is going to kill you.”

The barrage of messages affected C.W.’s daily existence. Believing that Counterman was threatening her life, she had “a lot of trouble sleeping” and suffered from severe anxiety. Consequently, she no longer walked alone, reduced her social activity, and canceled some performances. She eventually contacted the police.

The State charged Counterman under Colo. Rev. Stat. § 18-3-602(1)(c) (2022), which makes it unlawful to “[r]epeatedly … make[ ] any form of communication with another person” in “a manner that would cause a reasonable person to suffer emotional distress and does cause that person … to suffer serious emotional distress.” The State’s sole evidence against Counterman were his Facebook messages.

Counterman sought to have the charge dismissed on First Amendment grounds, arguing that his messages do not constitute “true threats” and thus cannot serve as the basis for a criminal prosecution. The trial court assessed the issue under the state’s “reasonable person standard.” People v. Cross, 127 P.3d 71 (Colo. 2006).  Under that standard, the State must prove that a reasonable person would view Counterman’s message as threatening, but the State need not prove that he possessed any kind of “subjective intent to threaten” C.W. In re R.D., 464 P.3d 717 (Colo. 2020). Under the totality of the circumstances, the trial court ruled that Counterman’s messages rose to the level of a “true threat,” and thus, the First Amendment does not bar prosecution. A jury found him guilty.

Counterman timely appealed. The Colorado Court of Appeals affirmed, and the state Supreme Court denied review.

The U.S. Supreme Court granted certiorari, observing that courts “are divided about (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threat cases, and (2) if so, what mens rea standard is sufficient.”

The Court began its analysis by noting that true threats of violence are not protected by the First Amendment. Virginia v. Black, 538 U.S. 343 (2003). True threats belong to that category of speech upon which restrictions are permitted because the speech provides “such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest” in prohibiting it. United States v. Stevens, 559 U.S. 460 (2010).

The other “historic and traditional categories” of unprotected speech are (1) incitement – statements intended to result in “imminent lawless action” and likely to do so, Brandenburg v. Ohio, 395 U.S. 444 (1969); (2) defamation – false statements of fact causing harm to one’s reputation, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); and (3) obscenity – valueless material appealing “to the prurient interest” and describing “sexual conduct” in “a patently offensive way,” Miller v. California, 413 U.S. 15 (1973).

The Court stated that the “true” distinguishes true threats from mere hyperbole or other statements that do not communicate a genuine likelihood of violence will ensue when taken in context, e.g., “I am going to kill you for showing up late.” Watts v. United States, 394 U.S. 705 (1969) (per curiam). True threats are serious expressions communicating that the speaker means to “commit an act of unlawful violence.” Black. The speaker’s awareness and intent that their statement conveys a threatening message are not relevant in determining whether a statement is a threat, the Court explained. See Elonis v. United States, 575 U.S. 723 (2015). Whether a statement is a threat depends on “what the statement conveys” to the person on the receiving end of the statement, not the mental state of the speaker. Id.   

However, the Court explained that because of the concern about the chilling effect on protected speech, the First Amendment may still impose a “subjective mental-state requirement” that would have the effect of “shielding” some true threats from criminal liability. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). Restrictions on speech that have the potential to cause speakers to engage in “self-censorship” for fear of inadvertently crossing over the line to prohibited speech or out of worry about the expense of becoming entangled in the legal system are frowned upon by the Supreme Court. See Gertz.

The Court further explained that in order to protect against speakers exercising self-censorship and steering well clear of even lawful speech approaching the “unlawful zone,” the requirement of a culpable mental state for imposing criminal liability is “an important tool to prevent” such self-censoring behavior. Speiser v. Randall, 357 U.S. 513 (1958). But this protection comes at a cost: “It will shield some otherwise proscribable (here, threatening) speech because the State cannot prove what the defendant thought,” according to the Court. See Mishkin v. New York, 383 U.S. 502 (1966).    

This “strategic protection” is part of the precedential case law for other categories of unprotected speech. Gertz. For example, the Supreme Court has held that defamation has “no constitutional value, id., yet a public figure must prove the speaker acted with “knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The Supreme Court has determined that the First Amendment “requires that we protect some falsehood in order to protect speech that matters.” Gertz.

Similarly, with incitement, the First Amendment prohibits civil or criminal punishment unless the speaker’s words are “intended,” not just likely, to produce imminent lawless action. Hess v. Indiana, 414 U.S. 105 (1973) (per curiam). This mens rea requirement helps prevent a law from chilling “mere advocacy” of illegal acts, which is protected First Amendment speech. Brandenburg.

Finally, the same holds true for obscenity. That is, the First Amendment requires proof of a defendant’s mental state – awareness of “the character and nature” of the materials distributed – in order to impose criminal punishment for obscenity. Hamling v. United States, 418 U.S. 87 (1974). The Court explained that material constitutes obscenity regardless of the “purveyor’s mental state,” but punishment for “distribution without regard to scienter would ‘have the collateral effect of inhibiting’ protected expression.” Smith v. California, 361 U.S. 147 (1959).

Turning to the present case, the Court stated that the reasoning that applies to the other unprotect categories of speech also favors “requiring a subjective element in a true-threats case.” The Court rejected a solely objective standard based on how “reasonable observers would construe a statement in context” because it would “discourage the ‘uninhibited, robust, and wide-open debate that the First Amendment is intended to protect.” Rogers v. United States, 422 U.S. 35 (1975). Thus, the Court’s concern for not chilling “non-threatening expression” compelled it to hold: “the State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.”

The Court then turned to the issue of which type of subjective standard should be adopted. It chose the least culpable level of mens rea and easiest to prove, viz., recklessness. In the context of threats, recklessness means that the speaker is aware “that others could regard his statements as” threatening violence and “delivers them anyway.” Elonis (Alito, J., concurring in part and dissenting in part). The Court reasoned that recklessness is the appropriate mens rea because such defendants “have consciously accepted a substantial risk of inflicting serious harm,” and recklessness offers sufficient “breathing space” for protected speech, “without sacrificing too many of the benefits of enforcing laws against true threats.”    

Applying the newly adopted standard to the present case, the Court concluded that Counterman’s conviction violates the First Amendment because he was prosecuted in accordance with an objective standard. The State only had to establish that a reasonable person would understand his Facebook statements as threats but did not have to show that he had any awareness that his statements could be understood that way by others. Thus, the Court held Counterman’s prosecution violates the First Amendment.

Accordingly, the Court vacated the state Court of Appeals’ judgment and remanded the case for further proceedings consistent with its opinion. See: Counterman v. Colorado, 2023 U.S. LEXIS 2788 (2023).