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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