Counterman v. Colorado
Headline: Ruling limits threat prosecutions by requiring states to prove a speaker was at least reckless about whether words would be seen as violent threats, making some online stalking prosecutions harder.
Holding: The State 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 than a recklessness standard.
- Requires prosecutors to prove recklessness about the speech’s threatening nature.
- Makes convictions harder when defendants lacked awareness their words were threats.
- Affects online harassment and stalking cases nationwide.
Summary
Background
From 2014 to 2016, a man named Billy Counterman sent hundreds of unwanted Facebook messages to C. W., a local singer and musician he had never met. She repeatedly blocked him, but he kept creating new accounts and resuming contact. Some messages suggested surveillance and several included violent language such as "Fuck off permanently," "Staying in cyber life is going to kill you," and "Die." C. W. feared for her safety, stopped walking alone, canceled performances, and eventually contacted authorities. Colorado charged him under a stalking law forbidding repeated communications that would cause a reasonable person serious emotional distress and that do cause such distress.
Reasoning
The Supreme Court considered whether the First Amendment allows conviction based only on how a reasonable person would view the words, or whether the State must also prove something about the speaker’s mindset. The Court said true threats are not protected speech but that to avoid chilling lawful expression the Constitution requires a subjective mental-state element. The Court held a recklessness standard is sufficient: the State must show the speaker consciously disregarded a substantial risk that others would view the communications as threats. The Court rejected both a purely objective test and a mere negligence standard, and it declined to require the higher standards of purpose or knowledge.
Real world impact
The decision means prosecutors relying on the content of messages must present evidence that the speaker was at least reckless about the message’s threatening nature. Many online harassment and stalking prosecutions that rested only on an objective reasonable-person test will need further proof of the sender’s state of mind. The Court vacated the Colorado conviction and sent the case back for proceedings consistent with this rule.
Dissents or concurrances
Justice Sotomayor agreed a subjective element is required but warned against broadly settling recklessness as the universal standard; Justices Thomas and Barrett dissented.
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