Prosecuting a true threat requires at least a reckless state of mind
Counterman v. Colorado (SCOTUS June 27, 2023) Background. Billy Counterman was charged by Colorado prosecutors for harassment and stalking. For two years, Billy Counterman sent a local musician hundreds of messages on Facebook. Messages started with “A fine display with your partner” and a “couple physical sightings” were sent to her. She never responded. The messages took a turn: “Fuck off permanently.” “Staying in cyber life is going to kill you.” “You’re not being good for human relations. Die.” The musician got scared and believed her life was in danger. She went to the authorities. Colorado has a statute criminalizing repeated communications “that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. § 18-3-602(1)(c). Counterman moved to dismiss on the grounds that it was not a true threat under the First Amendment. Counterman challenged the objective “reasonable person