On “true threats” in Counterman v. Colorado

Billy Counterman sent hundreds of Facebook messages to a local singer and musician, even though the two of them had never met.  Every time the complainant blocked his account to prevent him from communicating with her, Counterman created a new account and resumed his messages.   

Some of the messages were cheery:  “Good morning sweetheart.”  Some suggested he might be surveilling her:  “Was that you in the white Jeep?”  Others were angry and threatening:  “Fuck off permanently” and “Staying in cyberlife is going to kill you.”

The messages put the complainant in fear for her life.  She also had trouble sleeping and suffered from severe anxiety.

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At trial, Counterman moved to dismiss the charges on the grounds that his messages were not “true threats.” 

In line with Colorado law, the trial court assessed the true-threat issue using an “objective reasonable person standard.”   According to this standard, the prosecution needed prove only that a reasonable person would have viewed the messages as threatening.  By contrast, there was no need for proof that Counterman had any “subjective intent” to threaten the complainant.

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“True threats of violence” are not protected as free speech under the First Amendment.  

The issue for the recent U.S. Supreme Court decision in Counterman v. Colorado, 143 S.Ct. 2106 (2023) is what the government was required to prove in order to secure a conviction for this offense.

Counterman’s words were on their face threatening.  The lower court was thus correct in concluding that any reasonable person hearing these words would interpret them as a threat. 

The question for the Court, however, was whether the statute also required that the defendant be aware in some way that his communications could be perceived as threatening.

Counterman argued – and the Supreme Court agreed – that the absence of such a mens rea requirement could have the unintended effect of “chilling” (that is, discouraging in some way) protected, non-threatening speech.  Self-censorship

After all, as Judge Kagan pointed out, there are always trade-offs, and it is important to err on the side of safety with respect to the protection of speech under the First Amendment:  An unfortunate byproduct of providing “breathing room for more valuable speech” will necessarily be the impeding of some “true threat” prosecutions.  

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With respect to the required mens rea, the Supreme Court had already concluded in Elonis v. United States, 575 U.S. 723 (2015) that the mental states of “purposefully” and “knowingly” both satisfied the requirements of the statute.  

A person acts purposefully when he consciously desires a result – in this case, when he wants his words to be perceived as threats. 

A person acts knowingly when he is aware that a result is practically certain to follow – in this case, when he knows to a practical certainty that others will take his words as threats.  

But Elonis did not address the other two components of the mens rea hierarchy:  recklessness and negligence.  

A person acts recklessly when he consciously disregards a substantial risk that the conduct will cause harm to another.  That means in this context that the speaker is aware that others could regard his statements as threatening violence and delivers them anyway.

Finally, a person acts negligently if he should be aware of a substantial risk that others will understand his words as threats.  

Among the four standards, the Court held, the first three – purposefully, knowingly and recklessness – all satisfy the need to protect First Amendment speech while also allowing the state to convict morally culpable defendants. 

Extending the required mental state from purposefully and knowingly, as discussed in Elonis, to recklessness “offers enough breathing space for protected speech, without sacrificing too many of the benefits of enforcing laws against true threats.”  (Internal quotations omitted.). 

Kagan concluded:  “As with any balance, something is lost on both sides:  The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats.  But in declining one of those two alternative paths, something more important is gained:  Not ‘having it all’ – because that is impossible – but having much of what is important on both sides of the scale.”