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Supreme Court: First Amendment Requires Showing of Recklessness to Prosecute ‘True Threats’

Supreme Court: First Amendment Requires Showing of Recklessness to Prosecute ‘True Threats’

The Court gave the First Amendment some ‘breathing room’ to protect against encroachment by prosecutions for ‘true threats.’

In a 7-2 decision, the Supreme Court of the United States reversed a Colorado man’s conviction for making “true threats” after finding the legal standard applied was inconsistent with the First Amendment. Billy Counterman was found guilty of sending threatening statements under a Colorado law that did not require the state to prove Counterman understood “his statements’ threatening nature.”

A Colorado court found Counterman guilty because he repeatedly sent unwanted “Facebook messages to C. W., a local singer and musician.” Some messages were mundane, while others suggested Counterman was stalking C. W. Some messages “envisaged harm befalling” C. W.

The challenged Colorado law criminalized “[r]epeatedly . . . mak[ing] 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.” (emphasis added)

The Court reversed Counterman’s conviction because the law employed an objective reasonable person standard that only required the prosecution to show a reasonable person would have perceived Counterman’s statements as “true threats” with any required showing that Counterman subjectively understood the “threatening nature” of his messages.

The Colorado Attorney General, whose office represented the state before the Court, issued a strong rebuke of the Court’s decision via his official Twitter account:

“True threats,” according to the Court, “are ‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.'” These threats have long been held to “lie outside the bounds of the First Amendment’s protection.”

Despite finding for Counterman, the Court acknowledged that “a statement can count as such a threat based solely on its objective content” as determined by the reasonable person standard but held a subjective standard was also needed to prevent encroachment on protected speech.

The Court observed lower federal and state courts considering similar laws have come to conflicting conclusions on two key questions before the Court: “Courts are divided about (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threats cases, and (2) if so, what mens rea [state of mind] standard is sufficient.”

Does the First Amendment require showing the ‘defendant’s subjective mindset’?

Justice Kagan authored the opinion of the Court, which the Chief Justice and Justices Alito, Kavanaugh, and Jackson joined. The Court held the First Amendment requires the prosecution to establish “that the defendant had some subjective understanding of his statements’ threatening nature.”

The requirement of a “subjective understanding” by the defendant, the Court reasoned, provides some “breathing room” to non-threatening speech perceived as such, even though the subjective standard would have the incidental effect of protecting otherwise “unprotected speech” (i.e., true threats).

The Court found this requirement consistent with its jurisprudence on prosecutions for other forms of unprotected speech, including defamation and incitement, which have long been held to fall outside the First Amendment’s ambit.

The Court cited its precedent requiring that prosecution of defamation requires a showing that “the speaker acted with ‘knowledge that it was false or with reckless disregard of whether it was false or not'” when the target is a public figure.

The Court also reflected on its precedent for prosecuting incitement to lawlessness. Here, the Court has imposed an even stronger showing of mens rea that the speech was “directed [at] producing imminent lawless action” and that the speech was “likely to do so.”

What mens rea standard satisfies the First Amendment?

The Court then turned to the matter of what mens rea standard to apply: purposeful, knowing, or reckless:

A person acts purposefully when he “consciously desires” a result—so here, when he wants his words to be received as threats. . . . A person acts knowingly when “he is aware that [a] result is practically certain to follow”—so here, when he knows to a practical certainty that others will take his words as threats. . . . A person acts recklessly . . . when he “consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another. . . . In the threats context, it means that a speaker is aware “that others could regard his statements as” threatening violence and “delivers them anyway.” (emphasis added, citations omitted)

The Court settled on the reckless standard as the appropriate mens rea to balance two competing interests: “protecting against the profound harms, to both individuals and society, that attend true threats of violence” and the desire to prevent the “chilling effect” on “protected speech near the borderline of true threats.”

The Court settled on the lower recklessness standard employed in the prosecution of defamation against public officials, reasoning that it struck the appropriate balance between protecting speech and allowing the state to counter true threats.

The Court declined to apply the higher purposeful or knowing standards employed in the prosecution of incitement. The Court reasoned a higher standard is needed for incitement because “strong protests against the government and prevailing social order” are “commonly a hair’s-breadth away from political ‘advocacy'” of lawlessness.

Justice Sotomayor concurred in part and concurred in the judgment, with Justice Gorsuch joining her concurrence in part. Sotomayor agreed that recklessness was the appropriate mens rea in Counterman’s case but criticized the Court’s holding that recklessness was the sole standard under the First Amendment for prosecuting true threats.

Justice Thomas wrote a dissent criticizing the Court for relying on its defamation precedents, which he has frequently called for the Court to revisit and reject.

Justice Barrett wrote a dissent, which Thomas joined. Barrett rejected the argument that regulation of unprotected speech required a subjective test: “We have held that nearly every category of unprotected speech may be regulated using an objective test.”

The Colorado Attorney General’s office declined to comment on Counterman v. Colorado beyond the content of its press release.


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So “my feelies got hurt and now I don’t feel safe” isn’t a defense anymore?

    thad_the_man in reply to diver64. | June 28, 2023 at 5:50 pm

    Read just the opposite ( it’s very Orwellian ). It is if the public decides your speech is “violence”.

      starride in reply to thad_the_man. | June 28, 2023 at 7:16 pm

      I agree, it leaves a simple threat of words as violence….

      Saying I am going to wage war against the government would be considered a threat… Even if all you actually do is go post on Facebook.

        thad_the_man in reply to starride. | June 28, 2023 at 7:44 pm

        A long time ago I tortured myself by reading Das Kapital. I did it in order to reply to Marxists who said I didn’t understand marxism.

        People who down vote me haven’t studied Marx or cultural marxism. Know your enemy folks.

        Look at who wrote the opinion. Cultural marxists are very good at twisting words. after looking at thousands of places I gave up on finding an explanation of “dialectical materialism”. The define materialism, they define dialaectical materialism”.

        Hell they can’t even agree on what a socialist is.

          thad_the_man in reply to thad_the_man. | June 28, 2023 at 8:07 pm

          Damn! When will LI get an edit button. I meant to say that they define “materialism”, they define “dialectic” but when they get to compound the two they just start talking crap about justice and weird examples.

        mailman in reply to starride. | June 29, 2023 at 3:47 am

        I disagree because now The Man has to PROVE what was said was said as an actual threat of physical violence…not something that hurt your (royal you) feelings.

    AF_Chief_Master_Sgt in reply to diver64. | June 28, 2023 at 8:47 pm

    Only when the aggrieved has sought refuge in mommy’s basement as a boba fide safe space.

thad_the_man | June 28, 2023 at 5:46 pm

Having watched a recent video by Peter Bogdossian ( sorry if I buthchered his name ) where he gets people to debate the topic “Speach can be violence” and rember the post-postmodernists claim that some speeach is violence, I would say that this is a terrible ruling.

    thad_the_man in reply to thad_the_man. | June 28, 2023 at 5:49 pm

    PS BY this ruling if you say something and someone tells you that is hurtfull and you say “I don’t care.” that is enough tofind yo you guilty if a jury thinks your speech is violent.

    AF_Chief_Master_Sgt in reply to thad_the_man. | June 28, 2023 at 8:48 pm

    I thought “Silence is Violence.”

    How can speech be violent?

      Depends. Are you a member of a population segment deemed to be eeeeeeevil? If so, whatever you do will be violence.

      Speak out? Violence. Keep silent? Violence.

      Breathe? Violence.

Wrathchilde | June 28, 2023 at 6:23 pm

I was always told that butthurt is not a tort. Apparently this no longer applies. MI has just changed our “hate crimes” law to make it so.

healthguyfsu | June 28, 2023 at 6:25 pm

I actually think this is a sensible ruling. There are words that can be dangerous (no, they aren’t violence). Fire/bomb in a theater, Death threats, etc.

I didn’t follow this case but I don’t see any place where the “victim” ever claimed to block him or shut down his avenue of communication. In other words, social media accounts completely devoid of anything you don’t like is not a human right.

ThePrimordialOrderedPair | June 28, 2023 at 7:11 pm

in a manner that would cause a reasonable person to suffer serious emotional distress

Does that mean a reasonable man or a “reasonable” woman? ANd would that mean a reasonable woman at any time …. ? Assuming, of course, that most people understand what a woman is. Katanji Wanji Jackson Brown can recuse herself as she can’t tell the difference between a man and a woman.

I think the “serious emotional distress” qualification is murkier than the “reasonable man/woman/person”. What passes for “serious emotional distress” these days would have gotten you laughed out of public just 20 years ago.

The Gentle Grizzly | June 28, 2023 at 7:40 pm

I keep getting a popup that looks like it is in Thai, with a big yellow question mark to the right in the image. What are you trying to sell? It happens with Firefox and with Vivaldi?

Are these annoying pop-ups to be regular fare here at LI? If so, I will re-consider my annual support checks.

The court is racist, pack the court!

But he’s stil in Facebook jail, right??? 🙂

I agree with Barrett’s dissent. Disappointing.

Just in time for Trump’s J6 indictment. It sounds like this makes bringing an “incitement” charge easier.

Couldn’t the issue be solved by simply requiring a “victim” to say something like “you’re threatening me!” or “I do not feel safe with you saying these things, please leave me alone”?

This wouldn’t impact the reasonable man issue, but would satisfy the mens rea aspect, since they would now know the victim, at least, thinks it’s threatening.

    DaveGinOly in reply to GWB. | June 29, 2023 at 1:24 pm

    An interesting thought. But things are so political these days, I can imagine an self-styled victim stating “Stop, I find your language threatening,” just to set someone up for a fall, when they don’t really think they’ve been threatened. We’d also need a standard for determining the veracity of the “victim’s” statement too.

This ruling pretty much sticks a fork in the law coursing through the Michigan legislature making a crime of speech which the recipient thinks is threatening as the test. Good riddance.

    BierceAmbrose in reply to Roguewave1. | June 30, 2023 at 1:32 am

    Well, I was there when a once-iconic US company declared a workplace policy that you couldn’t say anything that anyone, unnamed, might assess that any other one, also unnamed, potentially might find offensive. Any you had to report it, if you saw it.

    So, they didn’t just turn everyone into Karens, but also mandated narcs.

    I guess Michigan’s legislature is just a bit late to this particular party.