Counterman v. Colorado

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Supreme Court of the United States
Counterman v. Colorado
Term: 2022
Important Dates
Argued: April 19, 2023
Decided: June 27, 2023
Outcome
affirmed and remanded
Vote
7-2
Majority
Chief Justice John Roberts • Samuel Alito • Sonia Sotomayor • Elena Kagan • Neil Gorsuch • Brett Kavanaugh • Ketanji Brown Jackson
Concurring
Sonia Sotomayor (concurring in part and concurring in the judgment) • Neil Gorsuch (in part)
Dissenting
Clarence Thomas • Amy Coney Barrett

Counterman v. Colorado is a case that was decided by the Supreme Court of the United States on June 27, 2023, during the court's October 2022-2023 term. It was argued before the Supreme Court of the United States on April 19, 2023.

HIGHLIGHTS
  • The issue: The case concerned the First Amendment. Specifically, how to determine whether death threats made through a social media platform are true threats. Click here to learn more about the case's background.
  • The questions presented: "Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence."[1]
  • The outcome: In a 7-2 opinion, the court affirmed and remanded the judgment of the Colorado Court of Appeals. The court held that in true-threats cases unprotected by the First Amendment, the state has to prove that the defendant had some subjective understanding of the threatening nature of their statements, but the First Amendment requires no more demanding a showing than recklessness. Justice Elena Kagan delivered the opinion of the court.[2]


    • The case came on a writ of certiorari to the Colorado Court of Appeals. To review the lower court's opinion, click here.

    Timeline

    The following timeline details key events in this case:

    • June 23, 2023: The U.S. Supreme Court affirmed and remanded the judgment of the Colorado Court of Appeals.
    • April 19, 2023: The U.S. Supreme Court heard oral argument.
    • January 13, 2023: The U.S. Supreme Court agreed to hear the case.
    • August 9, 2022: Billy Raymond Counterman appealed to the U.S. Supreme Court.
    • July 22, 2021: The Colorado Court of Appeals affirmed the trial court's conviction.

    Background

    Counterman v. Colorado is a case involving the First Amendment. The justices were asked to determine how to test whether a statement should be considered a true threat. Specifically, they were asked if a subjective test, showing the speaker intended the statement to be threatening, or if an objective test, showing that a reasonable person would feel threatened by the statement, should be applied.[3]

    Billy Raymond Counterman is the petitioner in this case. Counterman was convicted and sentenced to four-and-a-half years in prison for stalking C.W., a local musician. He sent her direct messages on Facebook indicating that he had seen her while driving and told her to “die” and “fuck off permanently.”[4] C.W. told a family member that receiving Counterman’s messages had made her “extremely scared”.[4][5]

    Counterman said that he had not intended for his messages to cause C.W. to feel threatened. In his petition, he argued that the court should hear the case because federal and state courts do not all agree on a standard for true threats. He argued that this case would be useful to test the issue because the prosecution relied on his speech. Counterman said that Colorado’s standard is too broad and an objective standard should be applied.[6]

    The Colorado Court of Appeals upheld Counterman’s conviction. The court determined that an objective test is enough to determine whether a statement is a true threat and is unprotected under the First Amendment.[4][5]

    Questions presented

    The petitioner presented the following questions to the court:[1]

    Questions presented:
    “ Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence.

    [7]

    		”

    Oral argument

    Audio

    Audio of oral argument:[8]




    Transcript

    Transcript of oral argument:[9]

    Outcome

    In a 7-2 opinion, the court affirmed and remanded the judgment of the Colorado Court of Appeals. The court held that in true-threats cases unprotected by the First Amendment, the state has to prove that the defendant had some subjective understanding of the threatening nature of their statements, but the First Amendment requires no more demanding a showing than recklessness. Justice Elena Kagan delivered the opinion of the court.[2]

    Opinion

    In the court's majority opinion, Justice Elena Kagan wrote:[2]

    “ The next question concerns the type of subjective standard the First Amendment requires. The law of mens rea offers three basic choices. Purpose is the most culpable level in the standard mental-state hierarchy, and the hardest to prove. A person acts purposefully when he “consciously desires” a result—so here, when he wants his words to be received as threats. United States v. Bailey, 444 U. S. 394, 404 (1980). Next down, though not often distinguished from purpose, is knowledge. Ibid. A person acts knowingly when “he is aware that [a] result is practically certain to follow”—so here, when he knows to a practical certainty that others will take his words as threats. Ibid. (internal quotation marks omitted). A greater gap separates those two from recklessness. A person acts recklessly, in the most common formulation, when he “consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another.” Voisine v. United States, 579 U. S. 686, 691 (2016) (internal quotation marks omitted). That standard involves insufficient concern with risk, rather than awareness of impending harm. See Borden v. United States, 593 U. S. ___, ___ (2021) (plurality opinion) (slip op., at 5). But still, recklessness is morally culpable conduct, involving a “deliberate decision to endanger another.” Voisine, 579 U. S., at 694. In the threats context, it means that a speaker is aware “that others could regard his statements as” threatening violence and “delivers them anyway.” Elonis, 575 U. S., at 746 (ALITO, J., concurring in part and dissenting in part).5


    Among those standards, recklessness offers the right path forward. We have so far mostly focused on the constitutional interest in free expression, and on the correlative need to take into account threat prosecutions’ chilling effects. But the precedent we have relied on has always recognized—and insisted on “accommodat[ing]”—the “competing value[]” in regulating historically unprotected expression. Gertz, 418 U. S., at 348. Here, as we have noted, that value lies in protecting against the profound harms, to both individuals and society, that attend true threats of violence—as evidenced in this case. See supra, at 2, 6. The injury associated with those statements caused history long ago to place them outside the First Amendment’s bounds. When despite that judgment we require use of a subjective mental-state standard, we necessarily impede some true-threat prosecutions. And as we go up the subjective mens rea ladder, that imposition on States’ capacity to counter true threats becomes still greater—and, presumably, with diminishing returns for protected expression. In advancing past recklessness, we make it harder for a State to substantiate the needed inferences about mens rea (absent, as is usual, direct evidence). And of particular importance, we prevent States from convicting morally culpable defendants. See Elonis, 575 U. S., at 745 (opinion of ALITO, J.). For reckless defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.
    Using a recklessness standard also fits with the analysis in our defamation decisions. As noted earlier, the Court there adopted a recklessness rule, applicable in both civil and criminal contexts, as a way of accommodating competing interests. See supra, at 7–8. In the more than halfcentury in which that standard has governed, few have suggested that it needs to be higher—in other words, that still more First Amendment “breathing space” is required. Gertz, 418 U. S., at 342. And we see no reason to offer greater insulation to threats than to defamation. See Elonis, 575 U. S., at 748 (opinion of ALITO, J.). The societal interests in countering the former are at least as high. And the protected speech near the borderline of true threats (even though sometimes political, as in Rogers) is, if anything, further from the First Amendment’s central concerns than the chilled speech in Sullivan-type cases (i.e., truthful reputation-damaging statements about public officials and figures). [7]

    		”
    —Justice Elena Kagan

    Concurring opinion

    Justice Sonia Sotomayor filed an opinion concurring in part and concurring in the judgment), joined by Justice Neil Gorsuch (in part)

    In her concurring opinion, Justice Sotomayor wrote:[2]

    “ I agree with the Court’s conclusion that the First Amendment requires a subjective mens rea in true-threats cases, and I also agree that recklessness is amply sufficient for this case. Yet I would stop there, leaving for another day the question of the specific mens rea required to prosecute true threats generally. If that question is reached, however, the answer is that true threats encompass a narrow band of intentional threats. Especially in a climate of intense polarization, it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard. Our society has often concluded that an intent standard sets a proper balance between safety and the need for a guilty mind, even in cases that do not involve the First Amendment. Surely when the power of the State is called upon to imprison someone based on the content of their words alone, this standard cannot be considered excessive. Because I part ways with the Court on this score, I respectfully concur only in part and in the judgment.[7] ”
    —Justice Sonia Sotomayor

    Dissenting opinion

    Clarence Thomas

    Justice Clarence Thomas filed a dissenting opinion.

    In his dissent, Justice Thomas wrote:[2]

    “ I join JUSTICE BARRETT’s dissent in full. I write separately to address the majority’s surprising and misplaced reliance on New York Times Co. v. Sullivan, 376 U. S. 254 (1964). In New York Times, this Court held that the First Amendment bars public figures from recovering damages for defamation unless they can show that the statement at issue was made with “‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 280. Like the majority’s decision today, “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” McKee v. Cosby, 586 U. S. ___, ___ (2019) (THOMAS, J., concurring in denial of certiorari) (slip op., at 2). Instead of simply applying the First Amendment as it was understood at the time of the Founding, “the Court fashioned its own ‘“federal rule[s]”’ by balancing the ‘competing values at stake in defamation suits.’” Ibid. (quoting Gertz v. Robert Welch, Inc., 418 U. S. 323, 334, 348 (1974)); see also Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 501–502 (1984) (acknowledging that “the rule enunciated in the New York Times case” is “largely a judge-made rule of law,” the “content” of which is “given meaning through the evolutionary process of common-law adjudication”). “The constitutional libel rules adopted by this Court in New York Times and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law.” McKee, 586 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 6). Thus, as I have previously noted, “[w]e should reconsider our jurisprudence in this area.” Id., at ___ (slip op., at 14); see also Berisha v. Lawson, 594 U. S. ___ (2021) (THOMAS, J., dissenting from denial of certiorari).[7] ”
    —Justice Clarence Thomas


    Amy Coney Barrett

    Justice Amy Coney Barrett filed a dissenting opinion, joined by Justice Clarence Thomas.

    In her dissent, Justice Barrett wrote:[2]

    “ The bottom line is this: Counterman communicated true threats, which, “everyone agrees, lie outside the bounds of the First Amendment’s protection.” Ante, at 4. He knew what the words meant. Those threats caused the victim to fear for her life, and they “upended her daily existence.” Ante, at 2. Nonetheless, the Court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result. I respectfully dissent.[7] ”
    —Justice Amy Coney Barrett

    Text of the opinion

    Read the full opinion here.

    October term 2022-2023

    See also: Supreme Court cases, October term 2022-2023

    The Supreme Court began hearing cases for the term on October 3, 2022. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[10]


    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 U.S. Supreme Court, "22-138 COUNTERMAN V. COLORADO," accessed January 19, 2023 Cite error: Invalid <ref> tag; name "question" defined multiple times with different content
    2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 U.S. Supreme Court, "Counterman v. Colorado - Certiorari to the Court of Appeals of Colorado," accessed June 28, 2023
    3. ↑ SCOTUSblog, "Relist-palooza: Religious exercise, the False Claims Act, takings clause, RICO, bank secrecy, and more," January 11, 2023
    4. ↑ 4.0 4.1 4.2 SCOTUSblog, "Court grants review in new batch of cases, including dispute on religious rights of employees," January 13, 2023
    5. ↑ 5.0 5.1 Colorado Court of Appeals, People v. Counterman, decided July 22, 2021
    6. ↑ The Supreme Court of the United States, "BILLY RAYMOND COUNTERMAN, PETITIONER v. THE PEOPLE OF THE STATE OF COLORADO ON PETITION FOR A WRIT OF CERTIORARI TO THE COLORADO COURT OF APPEALS, DIVISION II REPLY BRIEF FOR THE PETITIONER," October 26, 2022
    7. ↑ 7.0 7.1 7.2 7.3 7.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    8. ↑ Supreme Court of the United States, "Oral Argument - Audio," argued April 19, 2023
    9. ↑ Supreme Court of the United States, "Oral Argument - Transcript," argued April 19, 2023
    10. ↑ SupremeCourt.gov, "The Supreme Court at Work: The Term and Caseload," accessed January 24, 2022
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