Counterman v. Colorado

Background

From 2014 to 2016, a man named Billy Counterman sent hundreds of Facebook messages to a local singer and musician, C. W., who had never met him and did not reply. She repeatedly blocked him but he kept contacting her by creating new accounts. Some messages imagined violence and caused C. W. to fear for her life, stop walking alone, decline social events, and cancel performances. Colorado charged Counterman under a stalking-related statute that also covers repeated communications causing serious emotional distress. At trial Colorado applied an objective reasonable-person test and a jury convicted him.

Reasoning

The Supreme Court considered whether the First Amendment allows conviction without proof that the speaker understood others would view his words as threatening. The Court held the First Amendment requires a subjective mental state for true-threat prosecutions, but it need not be purpose or knowledge. The Court set the constitutional minimum at recklessness, meaning the State must prove the defendant consciously disregarded a substantial risk that others would see the communications as threats of violence. The Court explained this standard balances protecting speech from chilling effects and allowing States to prosecute dangerous communications.

Real world impact

The Court vacated the Colorado Court of Appeals decision and remanded the case for further proceedings consistent with its holding. Convictions or civil orders based on an objective reasonable-person test may need reexamination. States retain authority to prosecute threatening communications but must prove the speaker met the recklessness standard.

Dissents or concurrances

Justice Sotomayor concurred in part and would not decide the mens rea question generally, preferring to limit the holding to stalking cases; Justices Thomas and Barrett dissented.