Counterman v. Colorado
The Supreme Court ruled that the government cannot convict someone for making true threats using only a 'reasonable person' standard — it must also show the speaker had some subjective awareness that the statement could be understood as threatening.
The decision sets a new national constitutional floor for all true-threats prosecutions: the government must prove at minimum that the speaker recklessly ignored a substantial risk that the words would be read as threatening violence, though it need not prove the speaker specifically intended to threaten anyone.
How it got here: A Colorado trial court convicted Counterman under an objective standard; the Colorado Court of Appeals affirmed; the Colorado Supreme Court denied review; the Supreme Court granted certiorari to resolve a split among courts on whether the First Amendment requires proof of subjective mental state.
The Case in Depth
What happened
Billy Counterman sent hundreds of Facebook messages to C.W., a local singer and musician he had never met, over two years. She repeatedly tried to block him, but he created new accounts and resumed contact each time. Several messages expressed anger and described violent harm coming to her — "Staying in cyber life is going to kill you" and "Die" among them. C.W. was terrified: she stopped walking alone, canceled performances, and eventually contacted police. Colorado charged Counterman under its stalking law for communicating in a manner that would cause a reasonable person serious emotional distress.
The question before the Court
Can the government convict someone for making true threats without showing that the speaker knew, or at least suspected, that the statement would be understood as a threat?
The Court's answer
Yes — the First Amendment does require some showing of subjective awareness, but not much. The Court held that a recklessness standard is the constitutional floor: the government must prove that the speaker consciously disregarded a substantial risk that the communications would be understood as threatening violence. A state cannot convict someone solely because a reasonable person would find the messages threatening, without any inquiry into what the speaker himself understood.
The Court chose recklessness — rather than requiring proof that the speaker specifically intended to threaten — by drawing on the defamation framework from New York Times Co. v. Sullivan, which has long required showing "reckless disregard" of falsehood in public-figure cases. Without any subjective-awareness requirement, the Court reasoned, people might self-censor perfectly lawful speech out of fear that heated or emotional language could be misread as a criminal threat. Because Colorado prosecuted Counterman under a purely objective standard, the conviction violated the First Amendment.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
People facing criminal prosecution or civil proceedings — including stalking charges and restraining orders — for threatening communications can now raise a First Amendment defense if the government cannot prove the speaker consciously disregarded the risk that the words would be seen as threatening. This makes it harder to punish online harassment and threatening messages when the speaker denies awareness of the threatening nature of the communication, even when the victim was genuinely terrified.
What changes now
The case goes back to Colorado's courts, which must evaluate Counterman's conviction under the new recklessness standard. The government will have to prove not just that a reasonable person would find the messages threatening, but that Counterman consciously disregarded a substantial risk that his communications would be understood that way. The ruling applies nationwide to all true-threats prosecutions — criminal and civil — setting a constitutional floor that no state can go below.
What this does not decide
The Court does not resolve whether the recklessness standard is sufficient for prosecutions of isolated single threatening statements as opposed to a course of stalking conduct. Justice Sotomayor's concurrence argued that question was unnecessary to reach here and that, if reached, the answer would require intent rather than mere recklessness. The Court also did not address how the standard applies to defendants who may be delusional or otherwise unaware of reality.
Concurrences and dissents
Concurrence in part — Justice Sotomayor
Justice Sotomayor agreed that some subjective mens rea is required and that recklessness is sufficient for this case — a stalking prosecution involving repeated unwanted contact — but would have stopped there. She argued the Court unnecessarily reached the broader question of whether recklessness is the constitutional floor for true-threats prosecutions generally. If that question must be answered, she wrote, the answer should be intent (purpose or knowledge), not recklessness, because historical precedent and this Court's own prior decisions treat true threats as requiring intentional conduct. Justice Gorsuch joined Parts I, II, III-A, and III-B of her opinion.
Dissent — Justice Thomas
Justice Thomas joined Justice Barrett's dissent in full but wrote separately to challenge the majority's reliance on New York Times Co. v. Sullivan. He argued that Sullivan was itself a policy-driven decision that departed from the Constitution's original meaning and broke sharply from the common law of libel. Extending Sullivan's framework to true threats compounds what he views as a foundational error, and he reiterated his call to reconsider that line of precedent entirely.
Dissent — Justice Barrett
“It should be easy to choose between these positions. True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard. Nonetheless, the Court adopts a subjective standard, though not quite the one advanced by Counterman.”The dissent's opening argument that true threats should be governed by an objective standard, like nearly all other unprotected speech.
Justice Barrett argued that true threats, like nearly every other category of unprotected speech, can constitutionally be regulated using a purely objective standard. She contended that the harms of true threats are objective — they do not depend on what the speaker intended — and that existing doctrine already guards against overreach through a narrow definition of what counts as a true threat and a context-sensitive reasonable-listener inquiry. She also warned that the new recklessness requirement extends beyond criminal prosecutions to civil restraining orders, school discipline, and employer actions, making it harder to protect victims in all of those contexts.
How the Court got there
The legal reasoning, step by step
- The First Amendment has long excluded 'true threats' — serious expressions of intent to commit unlawful violence — from constitutional protection. But the Court has repeatedly recognized that even unprotected speech categories can trigger a 'chilling effect': when criminal or civil liability can follow from speech, people may self-censor even lawful expression to stay safely away from the legal line. Conditioning liability on proof of a culpable mental state reduces that chill.
- Applied to true threats, this chilling-effect logic means a speaker who sends an angry or overwrought message might restrain perfectly lawful speech — political criticism, hyperbole, venting — out of fear it could be prosecuted as threatening. The Court held the First Amendment therefore requires proof that the speaker had some subjective awareness of the threatening character of the words, not merely that a reasonable person would find them threatening.
- Among the three levels of culpable mental state — purpose (consciously desiring the threatening effect), knowledge (near certainty others will read the words as threats), and recklessness (consciously disregarding a substantial and unjustifiable risk) — the Court chose recklessness as the constitutional floor. Requiring purpose or knowledge would hobble true-threats prosecutions without meaningfully protecting more speech, while recklessness still captures morally culpable conduct: a speaker who knowingly accepted a substantial risk of causing fear.
- The Court drew the standard from defamation law. For more than half a century, public figures have been required to show a speaker acted with 'reckless disregard' of falsity before recovering for defamation — the rule from New York Times Co. v. Sullivan. The Court saw no reason to give true threats more First Amendment insulation than defamation, since the societal interest in preventing threats is at least as high, and speech near the borderline of true threats is, if anything, further from the First Amendment's core concerns than the truthful criticism of public officials that Sullivan was designed to protect.
- The Court explicitly distinguished its incitement cases — like Brandenburg v. Ohio — which require specific intent to produce imminent lawless action. That higher bar exists because incitement is often a hair's-breadth from core political advocacy, and history showed lower standards were used to punish legitimate protest. That particular concern is not present with true threats, which typically target individuals rather than arising in the political arena, so the lower recklessness threshold is appropriate.
- Because Colorado's courts applied only an objective 'reasonable person' standard — never asking whether Counterman was aware his messages could be seen as threatening — the prosecution violated the First Amendment, and the conviction could not stand.
Doctrinal impact
Cases affected by this decision
Reaffirms New York Times Co. v. Sullivan (376 U. S. 254)
The Court uses Sullivan's recklessness standard as the constitutional model for true-threats prosecutions.
Distinguishes Virginia v. Black (538 U. S. 343)
The Court reads Black's intent language as reflecting the Virginia statute's requirements, not a constitutional mandate.
Distinguishes Brandenburg v. Ohio (395 U. S. 444)
Higher intent required for incitement reflects political-speech proximity concerns not equally present in true-threats cases.