Counterman v. Colorado (U.S. Supreme Court, June 2023)

The Federal Docket

July 21, 2023

Based on harassing and threatening Facebook messages he had sent a local woman, Billy Counterman was charged under a Colorado statute that criminalized making repeated communications that would “cause a reasonable person to suffer serious emotional distress.” The trial court dismissed his motion to dismiss on First Amendment grounds, wherein he argued that his messages were not “true threats,” and he appealed to the Supreme Court. The Supreme Court granted cert to consider whether the First Amendment requires prosecutors in a “true threats” case to show that a defendant’s speech not only is objectively threatening, but that the defendant is subjectively aware of their threatening character.

In a 5-4 opinion, the Supreme Court held that the First Amendment requires that the State prove a defendant had “some subjective understanding of his statements’ threatening nature,” which the State can prove by showing that a defendant recklessly disregarded the threatening nature of his communications.

The majority opinion first examined the Court’s First Amendment jurisprudence regarding true threats and found that a subjective intent requirement would limit the potential of chilling protected speech–“A speaker’s fear of mistaking whether a statement is a threat, fear of the legal system getting that judgment wrong, and fear of incurring legal costs all may lead a speaker to swallow words that are in fact not true threats. Insistence on a subjective element in unprotected-speech cases, no doubt, has a cost: Even as it lessens chill of protected speech, it makes prosecution of otherwise proscribable, and often dangerous, communications harder. But a subjective standard is still required for true threats, lest prosecutions chill too much protected, non-threatening expression.”

The majority then held that a recklessness standard–under which a prosecutor must show that a person “consciously disregarded a substantial and unjustifiable risk that his conduct will cause harm to another–was appropriate. The Court reasoned that requiring that the State prove a defendant’s knowledge “would make it harder to states to counter true threats–with diminished returns for protected expression.”

Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, with Justice Gorsuch concurred in part. Justice Sotomayor agreed that a subjective standard was appropriate but, rather than a recklessness standard, the First Amendment requires that a prosecutor in most true threats cases prove that a defendant actually desired to threaten, or was substantially certain that his or her statements would be understood as threatening. However, Justice Sotomayor noted that a case involving conduct, such as stalking, could only require a recklessness showing.

Justice Thomas issued a lone dissent, criticizing the majority’s reliance on New York Times v. Sullivan, which involves the standard for defamation claims. Justice Thomas argued that the majority opinion, like New York Times,” is a “policy-driven decision[] masquerading as constitutional law.” Justice Thomas called for a history-based test based on how the scope of the First Amendment was considered at the time of the founding.

Justice Barrett also dissented, joined by Thomas. Justice Barrett argued that the “nature” of true threats support an objective standard and that an objective test “complements the explanation for excluding threats of violence from First Amendment protection in the first place.” Justice Barrett argued that the Court was treating “true threats” differently than other forms of unprotected speech, like fighting words, obscene speech, and misleading commercial speech, which rely on an objective test. And as for the comparison to the subjective test under New York Times, Justice Barrett noted that defamation cases involving private individuals employ an objective standard. Justice Barrett’s dissenting opinion also focused on the history of the First Amendment.

Opinion by Kagan, joined by Roberts, Alito, Kavanaugh, and Jackson
Concurring opinion in part by Sotomayor, with Gorsuch concurring in part
Dissent by Thomas
Dissent by Barrett, joined by Thomas

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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