Published on: Tuesday, June 27, 2023

The Supreme Court on Tuesday threw out the conviction of Billy Raymond Counterman, a Colorado man sentenced to four-and-a-half years in prison for stalking based on his Facebook messages over a period of several years that ranged from the banal to telling her to "die."

In an opinion written by Justice Elena Kagan, the court said threatening words should be evaluated instead through the subjective lens of what the speaker intended.

Prosecutors must demonstrate that a defendant who made a threat acted recklessly — that is, with the knowledge that others could regard their statement as threatening violence — to establish that the speech is a "true threat" and thus no longer covered by the First Amendment.

“The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs—all those may lead him to swallow words that are in fact not true threats,” Justice Kagan wrote.

To avoid that self-censorship, the court said a state must show defendants have some knowledge that their words would be considered harmful in order to convict on true threats. The court said recklessness—a disregard for whether the speech would be considered threatening—is enough.

Counterman was prosecuted under a standard requiring the state to show only that a "reasonable person" would understand the messages as threats. The majority found that violated the First Amendment.

In dissent, Justices Clarence Thomas and Amy Coney Barrett would have upheld Counterman’s conviction.