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Counterman v. Colorado

Supreme Court of the United States · 2023 · Constitutional Law

Constitutional LawFirst AmendmentTrue ThreatsFreedom of Speechtrue threatsFirst Amendmentmens rearecklessness

Facts

From 2014 to 2016, Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician who had never met him and never responded. Although she repeatedly blocked him, he created new accounts and continued messaging her, including statements suggesting surveillance and others expressing anger and harm, such as "Fuck off permanently," "Staying in cyber life is going to kill you," and "You're not being good for human relations. Die." The messages caused C. W. severe fear and anxiety, disrupted her daily life, and led her to contact law enforcement. Colorado charged him under a statute prohibiting repeated communications made in a manner that would cause a reasonable person serious emotional distress and that did cause such distress, relying only on the messages themselves.

Issue

Does the First Amendment permit a state to obtain a criminal conviction for threatening communications based only on an objective showing that a reasonable person would view the statements as threats, or must the State also prove some subjective mental state? If some subjective showing is required, is recklessness enough?

Rule

In a true-threat prosecution, the First Amendment requires the State to prove that the defendant had some subjective understanding of the threatening character of his statements. A mental state of recklessness is sufficient: the State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove purpose or knowledge.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, Nora Kim sent a former coworker, Evan Pike, three direct messages stating, "I can get to you anytime" and "One day you'll bleed for this." Arizona charged Nora under a criminal threats statute, and at trial the prosecutor proved only that an ordinary recipient would understand the messages as threatening violence.

Is the prosecution consistent with the First Amendment based on that showing alone?

Explanation. The majority held that although true threats are unprotected, the First Amendment still requires a subjective mens rea in criminal true-threat cases. A purely objective reasonable-person standard is unconstitutional. The State need not prove intent to carry out the threat, but it must prove at least that the defendant consciously disregarded a substantial risk that the communication would be viewed as threatening violence.