Counterman v. Colorado

Court: U.S. Supreme Court

Date Filed: March 1, 2023

Update: On June 27, 2023, the U.S. Supreme Court held that a threat prosecution requires proof of subjective recklessness — that “the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

Background: A jury in Colorado found Billy Raymond Counterman guilty of stalking after he repeatedly sent messages to a woman’s private and professional Facebook accounts over the course of two years. He was sentenced to four-and-a-half years in prison.

Counterman appealed his conviction, claiming that his Facebook messages were not “true threats,” a type of speech unprotected by the First Amendment, because he did not intend them to be threatening. In Virginia v. Black, the U.S. Supreme Court wrote that “true threats” “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.”

The Colorado Court of Appeals affirmed the trial court’s decision, holding that Counterman’s intent was irrelevant to the First Amendment analysis.

Counterman petitioned the U.S. Supreme Court. In January 2023, the Court agreed to hear the case to decide whether the “true threats” exception to the First Amendment is limited to speakers who subjectively intend to threaten.

Our Position: The Supreme Court should reverse the lower court’s decision because it violates the First Amendment and threatens important journalism.

• Statutes intended to punish threatening or harassing conduct can be, and have been, misused to target members of the press engaged in routine newsgathering on matters of public concern.
• The First Amendment shelters good-faith reporting — like other valuable speech — by requiring proof of intent to threaten.

Quote: “[R]eading the intent requirement out of the First Amendment’s exception for ‘true threats’ would force journalists to think twice before making a determined effort to obtain comment; reporting a speaker’s incendiary — but newsworthy — hyperbole; or publishing personal information relevant to evaluating the conduct of public officials. That chilling effect … would offend the core purposes of the First Amendment.”

Related: In 2014, the Reporters Committee filed a similar brief in Elonis v. United States, in which the justices avoided answering the same question.