Counterman v. Colorado
The Supreme Court threw out a Colorado man's stalking conviction, ruling that when the government charges someone with making true threats, it must show the speaker was at least aware his messages risked being seen as threatening — not just that a reasonable person would find them threatening.
The decision sets the first clear constitutional standard for true-threats cases nationwide, affecting criminal prosecutions, civil restraining orders, and school or workplace discipline involving threatening speech.
How it got here: A Colorado trial court convicted Counterman using an objective standard; the Colorado Court of Appeals affirmed; the Colorado Supreme Court denied review; the U.S. Supreme Court agreed to hear the case.
The Case in Depth
What happened
Billy Counterman, a man in Colorado, sent hundreds of Facebook messages over two years to C.W., a local singer and musician he had never met. She repeatedly blocked him; each time, he created a new account and resumed contact. Several messages expressed anger at C.W. or envisaged violence befalling her. C.W. became frightened, stopped walking alone, canceled performances, and eventually called the police. Colorado charged Counterman under a law making it illegal to repeatedly contact someone in a way that causes serious emotional distress.
The question before the Court
Does the First Amendment require prosecutors to show that someone who sent threatening online messages actually understood those messages could be seen as threatening — or is it enough to prove a reasonable person would have found them threatening?
The Court's answer
Yes — the First Amendment requires prosecutors to show more than that a reasonable person would find a statement threatening. The speaker must have had some subjective awareness of his messages' threatening nature. But the Court held that the minimum required level is recklessness: the speaker must have consciously disregarded a substantial risk that others would view his communications as threatening violence.
The Court rejected a higher bar — purpose or knowledge — because requiring those standards would make true-threats prosecutions substantially harder for states, with little added protection for genuinely non-threatening speech. Recklessness works as the constitutional floor because it mirrors the standard that has governed defamation claims against public figures for over fifty years under New York Times v. Sullivan, and the Court found no reason to give true threats greater insulation than defamation receives.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Victims of online harassment may find it harder to obtain civil restraining orders if alleged harassers can argue they didn't realize their words seemed threatening. Prosecutors must now gather evidence of the speaker's state of mind — not just show how a bystander would read the messages — raising the bar for stalking and harassment cases involving speech.
What changes now
The Colorado Court of Appeals' decision is vacated and the case is sent back for further proceedings under the new recklessness standard. On remand, the question will be whether the State can show Counterman consciously disregarded a substantial risk that his messages would be viewed as threatening violence. If the State cannot meet that higher bar, his conviction may not stand. The ruling applies immediately to true-threats prosecutions and civil harassment proceedings across the country.
What this does not decide
The Court does not decide whether Counterman should ultimately be convicted — that question returns to Colorado's courts. The opinion also leaves open whether the same recklessness standard applies equally to a single isolated threatening statement versus a prolonged pattern of stalking-style communications, a distinction the concurrence argued the majority should have addressed before announcing a broad rule.
Concurrences and dissents
Concurrence in part — Justice Sotomayor
Justice Sotomayor agrees that some subjective mens rea is required in true-threats cases, and that recklessness is amply sufficient for this particular stalking prosecution involving repeated, unwanted contact. But she would stop there and not reach the broader question of whether recklessness is sufficient for true-threats prosecutions generally — that question was not raised by the parties and was not necessary to decide the case. She also argues that historically, true threats required intent (purpose or knowledge), not merely recklessness, and that extending recklessness to all true-threats cases risks overcriminalizing political and online speech.
Dissent — Justice Thomas
Justice Thomas joins Justice Barrett's dissent in full but writes separately to attack the majority's reliance on New York Times v. Sullivan. He argues Sullivan itself was a policy-driven ruling that broke sharply from the common law of defamation and lacked genuine constitutional grounding. Extending Sullivan's 'actual malice' framework to true threats compounds that foundational error, and he urges the Court to reconsider its defamation jurisprudence rather than expand it further.
Dissent — Justice Barrett
Justice Barrett argues that nearly every category of unprotected speech — fighting words, false commercial speech, obscenity — can be restricted under an objective test, and there is no sound doctrinal or historical reason to treat true threats differently. Two features of true-threats doctrine — its narrow definition and the requirement that context inform whether a reasonable listener would feel threatened — already guard against chilling protected speech without any subjective standard. She also emphasizes that the ruling's new requirement extends to civil restraining orders, school discipline, and civil enforcement actions, not just criminal convictions, making the decision far broader in practical reach than it appears.
How the Court got there
The legal reasoning, step by step
- True threats — serious expressions conveying that a speaker means to commit an act of unlawful violence — are a historically unprotected category of speech, and their character as threats is determined objectively by how a reasonable person would receive them, not by what the speaker intended. Colorado's law used this purely objective test to convict Counterman.
- Even for unprotected speech, prosecutions can 'chill' lawful expression: a speaker unsure whether her angry words cross the legal line, or worried about getting tangled in expensive litigation, may stay silent even when her words are not actually threatening. The Court has addressed this concern in defamation, obscenity, and incitement cases by requiring proof of a subjective mental state, and it applied the same logic to true threats.
- The law of mens rea offers three levels above strict liability: purpose (the speaker wants his words taken as threats), knowledge (he is practically certain they will be), and recklessness (he consciously disregards a substantial risk that they will be). Negligence — an objective 'should have known' standard — falls below all three and is the kind of standard the Court rejected.
- The Court chose recklessness as the constitutional floor, drawing on defamation law from New York Times v. Sullivan, which has used a recklessness rule for public-figure claims for over half a century. Going higher (purpose or knowledge) would make true-threats prosecutions harder with little added benefit for free expression; going lower (objective negligence) would deter too much protected speech.
- The Court distinguished its incitement cases — Brandenburg v. Ohio and its progeny — which require purpose or knowledge. Those higher standards were developed to protect political advocacy against government prosecution, rooted in a history of abusing incitement laws to suppress dissent. That specific concern is not equally present at the borderline of true threats, which are typically not political advocacy at the First Amendment's core.
Doctrinal impact
Cases affected by this decision
Reaffirms Virginia v. Black (538 U. S. 343)
Reaffirmed as the source for defining true threats as 'serious expressions' of intent to commit unlawful violence.
Reaffirms New York Times Co. v. Sullivan (376 U. S. 254)
Reaffirmed as the model; its recklessness standard for defamation is extended as the constitutional floor for true-threats cases.
Distinguishes Brandenburg v. Ohio (395 U. S. 444)
Incitement's higher intent requirement does not apply to true threats, which lack the same proximity to core political speech.