Billy Raymond Counterman v. Colorado

Consequences:

2023-07-25: Dennis Aftergut and Laurence H. Tribe on Trump tweets during occupation of the Capitol in light of Counterman

Notable Items:

chilling effect

Sullivan

Mens rea

Petitioner:
Respondent:
Venue: Supreme Court of the United States
Opinion of the Court: Counterman-Colorado (2023)

Issue(s) Before the Court:

... whether the First Amendment still(?) requires proof that the defendant had some subjective understanding of the threatening nature of his statements. [Chaplinsky objective standard]
The first dispute here is about whether the First Amendment nonetheless demands that the State in a true-threats case prove that the defendant was aware in some way of the threatening nature of his communications.
The second issue here concerns what precise mens rea standard suffices for the First Amendment purpose at issue.

Petitioner's Claim(s):

Respondent's Claim(s):

Colorado maintains that an objective standard is enough—-that is, the government must show that a reasonable person would regard the statement as a threat of violence.

Holding(s) and Disposition:

Held: The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another. [emphasis added]
Disposition: Vacated and remanded.

Material Facts:

From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. never responded. In fact, she repeatedly blocked Counterman.
And most critically, a number expressed anger at C. W. and envisaged harm befalling her: “Fuck off permanently.” “Staying in cyber life is going to kill you.” “You’re not being good for human relations. Die.”
A full recounting of the facts is available below

Procedural History:

Colorado charged Counterman under a statute making it unlawful to “[r]epeatedly . . . make[ ] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person ... to suffer serious emotional distress.”
The only evidence the State proposed to introduce at trial were his Facebook messages.
Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution.
In line with Colorado law, the trial court assessed the true-threat issue using an “objective ‘reasonable person’ standard.”
The court decided, after “consider[ing] the totality of the circumstances,” that Counterman’s statements “r[o]se to the level of a true threat.”
The court accordingly sent the case to the jury, which found Counterman guilty as charged.
The Colorado Court of Appeals affirmed.
The Colorado Supreme Court denied review.
Courts are divided about (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threats cases, and (2) if so, what mens rea standard is sufficient.
We therefore granted certiorari.

Rationale

Kagan Majority Opinion (Roberts, Alito, Kavanaugh, Jackson)

Yet the First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability. The reason relates to what is often called a chilling effect. Prohibitions on speech have the potential to chill, or deter, speech outside their boundaries.
And an important tool to prevent that outcome—to stop people from steering “wide[ ] of the unlawful zone”—is to condition liability on the State’s showing of a culpable mental state. Speiser v. Randall, 357 U. S. 513, 526 (1958)
... reckless defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.
That standard, again, is recklessness. It offers “enough ‘breathing space’ for protected speech,” without sacrificing too many of the benefits of enforcing laws against true threats. Elonis, 575 U. S., at 748
A full description of the rationale is available below

Sotomayor Concurrance in part, concurring in judgement (Gorsuch joins as to Parts I, II, III–A, and III–B)

“From 1791 to the present, however, the First Amendment has permitted restrictions upon the content of speech in a few limited areas.” United States v. Stevens, 559 U. S. 460, 468 (2010)
“True threats” are one such category, and there is a tradition of criminalizing threats stretching back centuries.
There is no longstanding tradition, however, of punishing speech merely because it is unintentionally threatening. [strict liability]
Instead, this Court’s precedent, along with historical statutes and cases, reflect a commonsense understanding that threatening someone is an intentional act.
Today, unfortunately, the Court unnecessarily departs from this traditional understanding.
I join the Court’s conclusion that some subjective mens rea is required in true-threats cases.
... requiring nothing more than a mens rea of recklessness is inconsistent with precedent, history, and the commitment to even harmful speech that the First Amendment enshrines.
Part I
First, the courts below did not address whether recklessness was sufficient to prosecute true threats and neither of the actual parties have advocated a recklessness standard.
Second, because petitioner was prosecuted for stalking involving threatening speech, this case does not require resort to the true-threats exemption to the First Amendment.
True-threats doctrine covers content-based prosecutions for single utterances of “pure speech,” which need not even be communicated to the subject of the threat. Watts v. United States, 394 U. S. 705, 707 (1969) [emphasis added]
... prosecuting threatening statements made as part of a course of stalking does not squarely present the hardest questions about the mens rea required to prosecute isolated utterances based solely on their content.
There is simply no need to reach out in this stalking case to determine whether anything more than recklessness is needed for punishing true threats generally.
Part II
The risk of overcriminalizing upsetting or frightening speech has only been increased by the internet. [sic]
Overly constraining our society’s ability to respond to stalking would come at a real cost. For the reasons given, however, a mens rea standard for true threats would not hinder stalking prosecutions. See supra, at 3–5.
Part III
The Court begins by defining true threats as all objectively threatening speech, entirely independent of whether the speaker intended to be threatening, ante, at 6, and the lead dissent agrees, post, at 2–3 (opinion of BARRETT , J.).
The Court declares all such speech categorically unprotected, and then asks what “buffer zone” is needed in order to protect other, unthreatening speech.
Respectfully, I see the analysis differently.
The first step in the analysis should instead be to ask about the scope of the well-defined and narrow category of “true threats” as a constitutional matter.
... a careful examination of this Court’s true-threats precedent and the history of threat crimes does not support a long-settled tradition of punishing inadvertently threatening speech.
Part III A [True-threats require mens rea]
“ ‘True threats,’ ” the majority explained “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.” Black, at 359 (emphasis added). However, “[t]he speaker need not actually intend to carry out the threat,” as true threats also include intimidation alone. Id., at 359–360. And “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id., at 360 (emphasis added).
Consistent with the majority’s definition of true threats, both the plurality and Justice Scalia agreed that the lack of a sufficient intent requirement meant that a conviction under the statute could not stand.
In sum, all five Justices in the Black majority agreed that a true-threats prosecution could not stand under the First Amendment without a sufficient subjective mens rea requirement.
Part III B [Precedents]
None of the other opinions, however, identify a historical case that expressly raised the question whether a subjective mens rea is required and held that it is not. That is a remarkable thing when one considers that the sample size consists of decisions from both sides of the Atlantic across centuries.
Against that backdrop, I return to the inquiry at hand: whether there is a “long-settled” or “well-established” history of prosecuting inadvertently threatening speech. There is no line of cases or pattern of statutes affirmatively stating that an objective standard is sufficient.
Part III C [Reckless is not enough]
Put together, Black and the history point to an intent requirement. When Black defined and analyzed true threats in terms of intent, there is no reason to think the Court used intent to mean anything less than its traditional definition of purpose or knowledge. See, e.g., Tison, 481 U. S., at 150.
(“[t]raditionally, one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts.” Tison v. Arizona, 481 U. S. 137, 150 (1987)
Recklessness, which turns so heavily on an objective person standard, would not have been enough.
Part III D
In determining the appropriate mens rea, the Court analogizes to three categories of traditionally unprotected speech: incitement, obscenity, and defamation. None of these warrants expanding the narrow boundaries of true threats.
Part III D 1 [Incitement]
Despite their [incitement and true threats] similar nature and source, the Court today draws a hard line between the two. Incitement requires “ ‘inten[t].’ ” Ante, at 8. While for threats, the speaker need only be “aware that others could regard his statements as threatening violence and delive[r] them anyway.” Ante, at 11 (internal quotation marks omitted).
hese opinions offer little basis for distinguishing threats on this ground [a hair’s-breadth away from political ‘advocacy,’] , as this Court’s own cases show time and again how true-threats prosecutions sweep in political speech.
Not only that, but incitement itself is often only a hair’s-breadth away from threats.
Yet inflammatory and threatening as these speeches were, they did not constitute incitement. That was because “there [was] no evidence—apart from the speeches themselves—that [Charles, brother of Medgar] Evers authorized, ratified, or directly threatened acts of violence.” NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982)., at 929.
Under a recklessness rule, Claiborne would have come out the other way.
The foundational incitement case, Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam), extended First Amendment protections to armed Klan members uttering racial slurs, a warning that “there might have to be some revengeance taken,” ....
... he Court’s decision effectively downgrades to recklessness the mens rea required for incitement of unlawful force; prosecutors could now simply charge such offenses as true threats.
This collateral damage can be avoided, however, if intent to threaten is understood as part of a true threat, just like intent to incite is part of incitement.
Part III D 2 [Obscenity]
While obscenity is a step further afield of true threats and incitement, examination of this Court’s obscenity case law further supports an intent requirement for prosecutions of true threats.
Specifically, the Court has held that a “knowledge” mens rea is sufficient for obscenity: “It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials.” Hamling v. United States, 418 U. S. 123 (1974).
Part III D 3 [Defamation]
Specifically, the Court analogizes to the “reckless disregard” standard for defamation of public figures or punitive damages for certain claims involving private figures. New York Times Co. v. Sullivan, 376 U. S. 254, 279–280 (1964).
The equivalent to Sullivan for true threats would require a high degree of awareness that a statement was probably threatening or serious doubts as to the threatening nature of the statement. This could avoid the chilling that would arise from a more amorphous and easily satisfied standard.
Part III D 4 [Conclusion from the above]
The above survey does not, however, give reason to depart from the traditional understanding of true threats. To the contrary, this case law supports keeping true threats within their traditional bounds.
Part IV
Maintaining true threats doctrine within its traditional boundaries will guard against the overcriminalization of a wide range of political, artistic, and everyday speech based on its content alone.
As explained above, there are far fewer First Amendment concerns with stalking laws that punish repeated, targeted, unwanted conduct and accompanying speech. For that reason, recklessness is quite sufficient.
As to true threats, intent is neither an unusual nor an insurmountable bar.
“[C]ourts and juries every day pass upon knowledge, belief and intent ... having before them no more than evidence of ... words and conduct, from which, in ordinary human experience, mental condition can be inferred.” American Communications Assn. v. Douds, 339 U. S. 382, 411 (1950). [emphasis added]

Barrett Dissent (Thomas) (15)

Billy Counterman was convicted under a Colorado law that prohibits true threats.
Colorado maintains that an objective standard is enough—-that is, the government must show that a reasonable person would regard the statement as a threat of violence.
Counterman, however, argues that the First Amendment requires a subjective test—-that is, the speaker himself must intend or know the threatening nature of the statement.
True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard. [public figure defamation: NYTimes v. Sullivan; incitment to violence Brandenburg v. Ohio]
The Court holds that speakers must recklessly disregard the threatening nature of their speech to lose constitutional protection.
Part I [True Threats Not Protected Speech]
Since the founding, the First Amendment has allowed the government to regulate certain “areas of speech” “because of their constitutionally proscribable content.” R. A. V. v. St. Paul, 505 U. S. 377, 382–383 (1992)
This includes true threats, which are “serious expression[s] of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U. S. 343, 359 (2003)
True threats carry little value and impose great cost. See Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942)
The nature of a true threat points to an objective test for determining the scope of First Amendment protection: Neither its “social value” nor its potential for “injury” depends on the speaker’s subjective intent. Chaplinsky, 315 U. S., at 572.
So an objective test “complements the explanation for excluding threats of violence from First Amendment protection in the first place.” United States v. Jeffries, 692 F. 3d 473, 480 (CA6 2012).
Part II
The Court agrees that “[t]he existence of a threat depends not on ‘the mental state of the author,’ but on ‘what the statement conveys’ to the person on the other end.”
And it acknowledges that “[w]hen the statement is understood as a true threat, all the harms that have long made threats unprotected naturally follow.”
... the Court installs a prophylactic buffer zone to avoid chilling protected speech—-a buffer zone that protects true threats unless the speaker “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
That reasoning is flawed.
Part II A [Objective Standard is the Norm]
We have held that nearly every category of unprotected speech may be regulated using an objective test. In concluding otherwise, the Court neglects certain cases and misreads others.
Under our precedent, legislatures may regulate fighting words even when the speaker does not intend to provoke the listener (or does not recklessly disregard that possibility). Chaplinsky, 315 U. S., at 572–573
Thus, the government is “free to prevent the dissemination of commercial speech that is false, deceptive, or misleading,” without regard to whether the speaker knew that the recipient would be deceived or misled. Zauderer [v. Office of Disciplinary Counsel of Supreme Court of Ohio,] 471 U. S., at 638.
The speaker’s “ ‘belief as to the obscenity or non-obscenity of the material is irrelevant.’ ” Hamling v. United States, 418 U. S. 87, 120–121 (1974). So long as the defendant has “knowledge of the contents of the materials,” her speech may be constitutionally regulated. Id., at 123. An objective, reasonable-person standard applies.
The Court leans hardest on defamation law, but its argument depends on a single, cherry-picked strand of the doctrine. Yes, New York Times Co. v. Sullivan requires public figures and public officials to show “actual malice” on a defamation claim, ....
But the Court draws this conclusion from cases rejecting a strict liability standard—for example, we have held that the proprietor of a bookstore cannot be liable for possessing an obscene book unless he knew what was in it. Smith v. California, 361 U. S. 147, 149, 155 (1959); Mishkin v. New York, 383 U. S. 502, 510–512 (1966); see also Ginsberg v. New York, 390 U. S. 629, 643–644 (1968).
We have justified that distinction on the ground that public-figure defamation claims may deter “would-be critics of official conduct ... from voicing their criticism,” which would “dampe[n] the vigor and limit the variety of public debate.”
Sullivan’s rationale does not justify a heightened mens rea for true threats.
And perversely, private individuals now have less protection from true threats than from defamation-even though they presumably value their lives more than their reputations. See Gertz [v. Robert Welch, Inc.,] 418 U. S. 323, 347–350 (1974).
I will give the Court this much: Speakers must specifically intend to incite violence before they lose First Amendment protection. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969)
A specific intent requirement helps draw the line between incitement and “political rhetoric lying at the core of the First Amendment.” NAACP v. Claiborne Hardware Co., 458 U. S. 886, 926–927 (1982).
Precedent does more than allow an objective test for true threats; on balance, it affirmatively supports one.
Part II B [Adequate Safeguards Already Exist]
Two key features of true threats already guard against the risk of silencing protected speech.
First, only a very narrow class of statements satisfies the definition of a true threat. To make a true threat, the speaker must express “an intent to commit an act of unlawful violence.” Black, 538 U. S., at 359 (emphasis added).
The statement must also threaten violence “to a particular individual or group of individuals”—not just in general. Black, 538 U. S., at 359
Second, the statement must be deemed threatening by a reasonable listener who is familiar with the “entire factual context” in which the statement occurs.
Our decision in Black illustrates the point. ... We upheld the general prohibition on cross burning, concluding that the First Amendment allows the government to ban “a particular type of threat.” Id., at 362–363. [Barrett distinguishes the constitutionality of the general prohibition vs the overbroad language and presumption of the Virginia statute.]
The Black plurality’s reasoning can be boiled down to the following insight: When context is ignored, true threats cannot be reliably distinguished from protected speech. The reverse also holds: When context is properly considered, constitutional concerns abate. See, e.g., Watts v. United States, 394 U. S. 705, 708 (1969)
Part II C [No Historical Support for Subjective Standard]
If Counterman could show that a subjective requirement has been inherent in the definition of “true threat” since the founding, he would have a compelling case. But Counterman cannot make that showing.
He is plainly not asking the Court to enforce a historically sanctioned rule, but rather to fashion a new one.
Part II D [Why Recklessness?]
Even if a subjective test had a historical pedigree, the Court’s chosen standard of recklessness certainly does not.
A recklessness requirement currently applies only to public-figure defamation claims.
Incitement to violence calls for more [than a recklessness standard]. Fighting words, private-figure defamation, false commercial speech, and obscenity require less [than a recklessness standard].
Part III [Consequences of the Majority Opinion]
... the Court’s holding affects the civil consequences for true threats just as much as it restricts criminal liability. And the civil context underscores the danger of adopting a Sullivan-style buffer zone for true threats.
A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evi- dence of mental state for the government to use against her. The Court’s decision thus sweeps much further than it lets on.
* * *
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.

Thomas Dissent (2)

I write separately to address the majority’s surprising and misplaced reliance on New York Times Co. v. Sullivan, 376 U. S. 254 (1964).
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, 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.’ ”
It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence.

Full Recounting of Facts

From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. never responded. In fact, she repeatedly blocked Counterman.
And most critically, a number expressed anger at C. W. and envisaged harm befalling her: “Fuck off permanently.” “Staying in cyber life is going to kill you.” “You’re not being good for human relations. Die.”
The messages put C. W. in fear and upended her daily existence.
She stopped walking alone, declined social engagements, and canceled some of her performances, though doing so caused her financial strain.
A list of the material facts is available above

Kagan Majority Full Argument (Roberts, Alito, Kavanaugh, Jackson)

Part I
See Material Facts
See Procedural History
Part II
The first dispute here is about whether the First Amendment nonetheless demands that the State in a true-threats case prove that the defendant was aware in some way of the threatening nature of his communications.
... the State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.
The second issue here concerns what precise mens rea standard suffices for the First Amendment purpose at issue.
... we hold that a recklessness standard is enough.
Part II A [Scienter Requirement and Degree of mens rea]
[review of different types of speech]
True threats subject individuals to “fear of violence” and to the many kinds of “disruption that fear engenders.” Black, 538 U. S., at 360
Yet the First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability. The reason relates to what is often called a chilling effect. Prohibitions on speech have the potential to chill, or deter, speech outside their boundaries.
And an important tool to prevent that outcome—to stop people from steering “wide[ ] of the unlawful zone”—is to condition liability on the State’s showing of a culpable mental state. Speiser v. Randall, 357 U. S. 513, 526 (1958)
Defamation ... incitement ....
Given “the ambiguities inherent in the definition of obscenity,” the First Amendment “requires proof of scienter to avoid the hazard of self-censorship.” Mishkin [v. New York] (1966), 383 U. S., at 511.
Note 4: addressing Barrett's dissent.
Some 50 years ago, Justice Marshall made the point when reviewing a true-threats prosecution arguably involving only political hyperbole. See Rogers v. United States, 422 U. S. 35 (1975). [emphasis added]
And so use of that [objective] standard would discourage the “uninhibited, robust, and wide-open debate that the First Amendment is intended to protect.” Rogers v. United States, 422 U. S. 35 (1975) at 48.
But the ban on an objective standard remains the same, lest true-threats prosecutions chill too much protected, non-threatening expression.
Part II B [Type of Subjective Standard]
The law of mens rea offers three basic choices.
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).
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.
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) That standard involves insufficient concern with risk, rather than awareness of impending harm.
[negligence? defendant was not aware of the risk, but should have been aware of the risk]
Note 5: Just to complete the mens rea hierarchy, the last level is negligence—but that is an objective standard, of the kind we have just rejected. A person acts negligently if he is not but should be aware of a substantial risk—here, that others will understand his words as threats. Borden v. United States, 593 U. S. ___, ___ (2021)
... reckless defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.
That standard, again, is recklessness. It offers “enough ‘breathing space’ for protected speech,” without sacrificing too many of the benefits of enforcing laws against true threats. Elonis, 575 U. S., at 748
Part III [Holding]
[The State] did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment.
We accordingly vacate the judgment of the Colorado Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.
The core of the rationale is available above