Counterman v. Colorado

Although the First Amendment protects free speech, there are exceptions for incitement, defamation, obscenity, fighting words, and true threats.{{cite news |last1=Liptak |first1=Adam |title=When Do Creepy Facebook Messages Cross a Constitutional Line |url=https://www.nytimes.com/2023/02/20/us/politics/supreme-court-facebook-stalking-colorado.html |access-date=July 8, 2023 |work=The New York Times |date=February 20, 2023 |quote=There are exceptions for libel, incitement, obscenity and fighting words, and one for "true threats," which is at issue in Mr. Counterman's case.}} Before the Supreme Court ruling, there were conflicting standards in different states as well as in different federal courts of appeal over how to determine whether a threatening statement is not protected by the First Amendment. Some standards were based on whether a "reasonable person" would interpret the statement as threatening, known as an "objective" standard. Others were "subjective" standards based on the speaker's recklessness as to their statement's threatening nature, knowledge that their statement will be seen as a threat, or intent that their statement be a threat.{{cite news |last1=Sherry |first1=Allison |title=The latest free speech battle from Colorado going before the US Supreme Court will test the state's stalking laws |url=https://www.cpr.org/2023/02/10/colorado-stalking-laws-supreme-court-case/ |access-date=July 8, 2023 |work=Colorado Public Radio |date=February 10, 2023}} Colorado uses the reasonable-person standard.{{cite news |last1=Karlik |first1=Michael |title=Appeals court finds man's online threats to Denver musician not protected by First Amendment |url=https://www.coloradopolitics.com/courts/appeals-court-finds-mans-online-threats-to-denver-musician-not-protected-by-first-amendment/article_40c96aa4-ebd6-11eb-807f-1b51b1098346.html |access-date=July 8, 2023 |work=Colorado Politics |date=July 23, 2021}}

Beginning in 2010, Billy Counterman sent thousands of Facebook messages to singer-songwriter Coles Whalen over a six-year period.{{cite news | author = Kyle Wagner | title = U.S. Supreme Court Will Hear Colorado Social Media Stalking Case Involving Musician | quote = | newspaper = Westword | date = January 25, 2023 | pages = | url = https://www.westword.com/news/supreme-court-colorado-social-media-case-bill-counterman-coles-whalen-16009703 | accessdate = March 30, 2023 }} "You're not being good for human relations. Die. Don't need you," Counterman wrote. "Was that you in the white Jeep?" She blocked him several times, but he created new accounts and continued sending messages.{{cite news |last1=Gresko |first1=Jessica |title=The Supreme Court makes it more difficult to convict someone of making a threat |url=https://apnews.com/article/supreme-court-true-threat-first-amendment-34dae41b15463a52b90f2b936fa3bb83 |access-date=July 7, 2023 |work=AP News |date=June 27, 2023}} "Staying in cyber life is going to kill you," Counterman wrote. "Seems like I'm being talked about more than I'm being talked to. This isn't healthy."{{Cite news |last=Fritze |first=John |date=2023-06-27 |title=Is that a threat? Supreme Court backs man who sent 'creepy' Facebook messages |language=en-US |work=USA Today |url=https://www.usatoday.com/story/news/politics/2023/06/27/supreme-decision-stalking-messages-facebook/10800444002/ |access-date=2023-06-27}} Counterman was arrested in 2016 and prosecuted for stalking{{#tag:ref|The law's definition included repeatedly sending messages that caused serious emotional distress.|group="Note"}} under Colorado law{{#tag:ref|Section 18-3-602(1)(c), C.R.S. 2020|group="Note"}} based only on the text messages he sent.Counterman, slip op. at 1 n.1-2. Counterman was convicted and sentenced to four-and-a-half years of prison.{{cite news |last1=Harris |first1=Kyle |title=How Singer Coles Whalen Stopped a Stalker in Denver's Music Scene |url=https://www.westword.com/music/how-denver-singer-coles-whalen-stopped-stalker-billy-counterman-9622947 |access-date=July 8, 2023 |work=Westworld |date=October 25, 2017}} Colorado did not present any evidence of physical stalking acts, such as following, at the trial; the lack of a proven physical act exposed the case to First Amendment review under the true threats doctrine because the proven criminal act involved only speech. The Colorado Court of Appeals affirmed his conviction in 2021 under the standard that a person could "reasonably perceive" that the threats were serious. The Colorado Supreme Court denied review.{{Cite web |date=2023-01-30 |title=Supreme Court Report: Counterman v. Colorado, 22-138 |url=https://www.naag.org/attorney-general-journal/supreme-court-report-counterman-v-colorado-22-138/ |access-date=2023-04-17 |website=National Association of Attorneys General |language=en-US}}

On January 13, 2023, the Supreme Court granted his petition for a writ of certiorari.{{Cite web |title=Docket for 22-138 |url=https://www.supremecourt.gov/docket/docketfiles/html/public/22-138.html |access-date=2023-04-17 |website=www.supremecourt.gov}} The Biden administration submitted an amicus brief, warning that "Threats of violence against public officials in particular have proliferated in recent years, including threats against Members of Congress, judges, local officials, and election workers".

Oral arguments were held on April 19, 2023. Justice Clarence Thomas said, "We are more hypersensitive about different things now, and people can feel threatened in different ways."{{cite news |last1=Hurley |first1=Lawrence |title=Supreme Court weighs 'true threats' in online stalking case |url=https://www.nbcnews.com/politics/supreme-court/supreme-court-weighs-true-threats-online-stalking-case-rcna80405 |access-date=July 7, 2023 |work=NBC News |date=April 19, 2023}} Justice Neil Gorsuch said, "We live in a world in which people are sensitive, and maybe increasingly sensitive. As a professor, you might have issued a trigger warning from time to time when you had to discuss a bit of history that's difficult or a case that's difficult. What do we do in a world in which reasonable people may deem things harmful, hurtful, threatening? And we're going to hold people liable willy-nilly for that?"{{cite news |last1=Franks |first1=Mary Anne |title=Chief Justice John Roberts' Mockery of Stalking Victims Points to a Deeper Problem |url=https://slate.com/news-and-politics/2023/04/counterman-colorado-supreme-court-threats-stalking.html |access-date=July 8, 2023 |work=Slate |date=April 21, 2023}} Justice Amy Coney Barrett asked what if a professor gives a lecture "about just how vicious it was to be in a Jim Crow South and puts up behind them on a screen a picture of a burning cross and reads aloud some threats of lynching that were made at the time" and Black students interpret the lecture as a physical threat "because they don't understand it"? Chief Justice John Roberts made light of Counterman's messages, prompting laughter from other justices and the audience. Justice Elena Kagan said that from Whalen's perspective, Counterman's actions "can be objectively terrifying".

The case was decided on June 27, 2023. Justice Elena Kagan delivered the opinion of the court. In a 7–2 decision, the court ruled that the Court of Appeals erred in interpreting that the burden on the government to establish the statement being a "true threat" is to prove that a reasonable person would understand his statements as threats. The majority stated that for "true threat" cases, the government must prove that the speaker was reckless in their comments, but it does not need to prove that the speaker intended harm with their comments.{{Cite web|url=https://www.forbes.com/sites/alisondurkee/2023/06/27/supreme-court-sides-with-stalker-in-first-amendment-case/?sh=86a05df6534a}|title=Supreme Court Overturns Stalker's Conviction In First Amendment Case Over 'True Threats'|website=Forbes|date=June 27, 2023|access-date=June 28, 2023}} "The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence," Kagan wrote. "The State need not prove any more demanding form of subjective intent to threaten another."{{cite news |last1=Schonfeld |first1=Zach |title=Supreme Court vacates Colorado man's stalking conviction in 'true threat' First Amendment decision |url=https://thehill.com/regulation/court-battles/4069410-supreme-court-vacates-colorado-mans-stalking-conviction-in-true-threat-first-amendment-decision/ |access-date=July 7, 2023 |work=The Hill |date=June 27, 2023}} She explained that the recklessness standard involves "insufficient concern with risk, rather than awareness of impending harm".{{cite news |last1=Nolan Brown |first1=Elizabeth |title=Supreme Court Refuses To Expand the 'True Threats' Exception for Free Speech |url=https://reason.com/2023/06/28/supreme-court-refuses-to-expand-the-true-threats-exception-for-free-speech/ |access-date=July 7, 2023 |work=Reason |date=June 28, 2023}}

The court vacated the judgment of the Colorado Court of Appeals and remanded the case back down, which means the lower court will reconsider the case and could still convict Counterman if he's found guilty of stalking under the new standard set forth by the court.

Justice Sonia Sotomayor concurred in the judgement but wrote, "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." Justice Gorsuch agreed to her concurrence in part.

Justice Amy Coney Barrett dissented, writing that the decision "unjustifiably grants true threats preferential treatment" and that, because the majority decided it as a First Amendment matter, the standard would apply to civil cases as well as criminal. Justice Thomas joined her dissent and separately wrote to address the majority's "surprising and misplaced reliance" on New York Times Co. v. Sullivan, the landmark 1964 Supreme Court case that raised the requirement for public figures to claim libel.{{cite news |last1=Cole |first1=Devan |title=Justice Thomas renews attacks on landmark First Amendment decision in fiery dissent |url=https://www.cnn.com/2023/06/27/politics/clarence-thomas-first-amendment-libel-new-york-times-supreme-court/index.html |access-date=July 7, 2023 |work=CNN |date=June 27, 2023}}

Law specialists said the messages would probably still lead to reconviction under the recklessness doctrine.{{cite news |last1=Gumbel |first1=Andrew |title='Victims are terrified': supreme court ruling on stalking cases sparks alarm |url=https://www.theguardian.com/law/2023/jun/27/supreme-court-stalking-ruling-alarms-advocates-and-victims |access-date=July 7, 2023 |work=The Guardian |date=June 28, 2023}} Rhonda Saunders, a prosecutor specializing in stalking law, said many states already had the recklessness doctrine in their laws but added, "I'm afraid police agencies and prosecutors are going to use [the Supreme Court decision] as an excuse not to do the job they are supposed to do." Annie Seifullah, a civil litigator and cyberbullying survivor, said, "As the dust settles, I believe we'll find that a lot of egregious behavior will still fall under this new standard. But some won't...We need something more tailored to the actual harm here."

Law professor Mary Anne Franks, whose focus is cyberbullying, wrote: "The court ignores the reality that many stalkers fervently believe that their actions are or should be welcomed by their victims; indeed, the court's holding means that the more delusional the stalker, the more the stalking is protected." She wrote that "the Supreme Court has declared stalking to be protected by the First Amendment" and that the decision "elevates stalkers into free speech heroes". Victims' rights advocate Lenora Claire said, "My phone is blowing up with victims who are absolutely terrified. If you even get as far as prosecution, you've already been through the gauntlet, navigating the restraining order process, convincing law enforcement to take you seriously."

Brian Hauss, senior staff attorney with the American Civil Liberties Union's Speech, Privacy, & Technology Project said, "We're glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized. In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received."

• Mens rea
• Elonis v. United States

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• {{caselaw source

| case = Counterman v. Colorado, {{ussc|600|66|2023|el=no}}

| googlescholar = https://scholar.google.com/scholar_case?case=11686914554076813621

| justia = https://supreme.justia.com/cases/federal/us/600/22-138/

| oyez = https://www.oyez.org/cases/2022/22-138

| other_source1 = Supreme Court (slip opinion)

| other_url1 = https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf

| other_source2 =

| other_url2 =

}}

• [https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2021/17ca1465-PD.pdf Colorado Court of Appeals, Division II opinion in case No. 17CA1465 People v. Counterman. July 22, 2021. 497 P.3d 1039.]
• [https://www.youtube.com/watch?v=Ig_gGHuWYoo&t=1083s Colorado Court of Appeals Oral Argument (from 18:03 to 49:04)]

{{US1stAmendment Freedom of Speech Clause Supreme Court case law|state=collapsed}}

Category:2023 in United States case law

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