Published on: Tuesday, June 27, 2023

This morning, a 7-2 divided Supreme Court decided Counterman v. Colorado, No. 22-138 (June 27, 2023), holding that the government must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness.  Justice Kagan delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Alito, Kavanaugh, Jackson.  Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, partially joined by Justice Gorsuch.  Justice Thomas filed a dissenting opinion, and Justice Barrett filed a dissenting opinion joined by Justice Thomas.


From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged violent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence. The State charged Counterman under a Colorado statute making it unlawful 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.” Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution. Following Colorado law, the trial court rejected that argument under an objective standard, finding that a reasonable person would consider the messages threatening.  The state appellate courts affirmed.

The Court reversed and vacated Counterman’s conviction after concluding that he was prosecuted with an objective standard and did not have to show any awareness of Counterman’s part of his statements’ threatening character, which violates the First Amendment.  Justice Kagan’s majority opinion starts like this:

True threats of violence are outside the bounds of First Amendment protection and punishable as crimes. Today we consider a criminal conviction for communications falling within that historically unprotected category. The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements. We hold that it does, but that 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 any more demanding form of subjective intent to threaten another. 

Justice Sotomayor, partially joined by Justice Gorsuch, wrote a lengthy concurring opinion that concludes this way:

I agree with the Court’s conclusion that the First Amendment requires a subjective mens rea in true-threats cases, and I also agree that recklessness is amply sufficient for this case.  Yet I would stop there, leaving for another day the question of the specific mens rea required to prosecute true threats generally.  If that question is reached, however, the answer is that true threats encompass a narrow band of intentional threats.  Especially in a climate of intense polarization, it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard.  Our society has often concluded that an intent standard sets a proper balance between safety and the need for a guilty mind, even in cases that do not involve the First Amendment.  Surely when the power of the State is called upon to imprison someone based on the content of their words alone, this standard cannot be considered excessive.  Because I part ways with the Court on this score, I respectfully concur only in part and in the judgment.

The full Counterman opinion is available here.  Merits briefing is available on the Court's docket here.