Counterman v. Colorado, 143 S. Ct. 2106 (2023)

In a Criminal “True Threat” Case, the First Amendment Requires Proof that Defendant had a Subjective Understanding that his Statements were Threatening

General Interest to School Officials
Case: Counterman v. Colorado, 143 S. Ct. 2106 (2023)
Date: Tuesday, June 27, 2023

True threats of violence are outside the bounds of First Amendment protection and punishable as crimes. In a 7-2 decision, the Supreme Court held that in a criminal case, the State must show that the Defendant acted with recklessness and had some subjective understanding of the threatening nature of his statements.

From 2014 to 2016, Defendant-Appellant Billy Counterman sent hundreds of Facebook messages to C.W., a local singer and musician. These included messages that suggested Counterman was surveilling her and that she may come to harm. C.W. suffered from severe anxiety due to these messages, believing that Counterman was threatening her life. Eventually, C.W. contacted the authorities.

Colorado charged Counterman under Colo. Rev. Stat. § 18–3–602(1)(c), which states that it is illegal 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.” The only evidence the State introduced were his Facebook messages. At trial, Counterman was found guilty.

Counterman appealed. The Colorado law applies an objective standard, looking only at whether a reasonable person would have viewed the Facebook messages as threatening. Instead, Counterman claimed that the First Amendment demands a subjective standard, requiring the State to show that he was aware of the threatening nature of his statements.

The Supreme Court noted that there are categories of speech that are historically unprotected by the First Amendment, as they are of “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 forbidding them. These include true threats, incitement, defamation, obscenity, and others.

However, the Supreme Court reasoned that the First Amendment still requires a subjective mental-state requirement to prevent a chilling effect on otherwise protected speech. The Supreme Court held that the lowest level of mental states is sufficient to balance enough breathing space for protected speech without sacrificing too many of the benefits of enforcing laws against true threats. The Supreme Court held that recklessness, or awareness that listeners could regard one’s statements as threatening violence, is the proper standard to apply.

The Supreme Court vacated the lower court’s judgment and remanded the case for further proceedings.

While this case is not binding in Illinois and involves a state criminal law, the Supreme Court’s focus on a speaker’s subjective intent to make a “true threat” is noteworthy and may impact how schools analyze if expression is a “true threat” exempt from First Amendment protection.

Michelle Yang, IASB Law Clerk