Notable Items:

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:

Procedural History:


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

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

Barrett Dissent (Thomas) (15)

Thomas Dissent (2)

Full Recounting of Facts

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