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” standard and argued that the statute’s failure to consider his subjective intent violated his freedom of expression under the First Amendment. The trial court denied the motion. He was found guilty at trial. The Colorado appellate court affirmed and the Colorado Supreme Court denied review. Counterman petitioned to the Supreme Court of the United States.

 

The Freedom of Speech and its limitations. “Congress shall make no law . . . abridging the freedom of speech[.]” U.S. Const. Am. I. The First Amendment is not absolute. “From 1791 to the present, . . . the First Amendment  has permitted restrictions on the content of speech in a few limited areas.” United States v. Stevens, 559 U.S. 460, 468 (2010). The limited restrictions are “historically unprotected categories of speech as being of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest” in criminalizing them. Id. at 470. These limitations lying outside the protections of the First Amendment include incitement, statements “directed [at] producing imminent lawless action[,]” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); defamation—false statements harming another’s reputation, Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974), and obscenity, valueless material that “appeals to the prurient interest” describing “sexual conduct” in “a patently offensive way.” Miller v. California, 413 U.S. 15, 24 (1973).

 

A true threat lies outside the First Amendment and can be criminalized, but only with mens rea. True threats of violence are another category that do not enjoy First Amendment protections and can be criminalized by the State. Virginia v. Black, 538 U.S. 434, 359 (2003). Here’s how the majority today, written by Justice Elena Kagan, defined it:

 

The “true” in that term distinguishes what is at issue from jests, “hyperbole,” or other statements that when taken in context do not convey a real possibility that violence will follow (say, “I am going to kill you for showing up late”). Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam). True threats are “serious expression[s]” conveying that a speaker means to “commit an act of unlawful violence.” Black, 538 U.S. at 359. Whether the speaker is aware of, and intends to convey, the threatening aspect of the message is not part of what makes a statement a threat, as this Court recently explained. See Elonis v. United States, 575 U.S. 723, 733 (2015). The 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. Ibid. When the statement is understood as a true threat, all the harms that have long made threats unprotected naturally follow. True threats subject individuals to “fear of violence” and to the many kinds of “disruption that fear engenders.” Black, 538 U.S. at 360.

 

The SCOTUS held that a true threat requires the prosecution to also establish some kind of mens rea, or state of mind, when the defendant makes the threat. The SCOTUS explained that prohibitions on speech can “chill, or deter, speech outside their boundaries:

 

A speaker may be unsure about the side of a line on which his speech falls. Or he may worry that the legal system will err, and count speech that is permissible as instead not. Or he may simply be concerned about the expense of becoming entangled in the legal system. The result is “self-censorship” of speech that could not proscribed—a cautious and restrictive exercise of the First Amendment freedoms.

 

The SCOTUS examined the other historical exceptions to the First Amendment and found that most require some kind of state of mind requirement. New York Times v. Sullivan, 376 U.S. 254, 280 (1964) (malicious intent required in defamation action brought by public figure); Hamling v. United States, 418 U.S. 87, 122-23 (1974) (defendant’s awareness that materials were obscene is required); Smith v. California, 361 U.S. 147, 151 (1959) (punishing distribution of obscene materials without regard to state of mind has the “collateral effect of inhibiting” protected expression). The SCOTUS found no reason to depart from this requirement when it comes to true threats:

 

The same reasoning counsels in favor of requiring a subjective element in a true-threats case. This Court again must consider the prospect of chilling non-threatening expressing, given the ordinary citizen’s predictable tendency to steer wide of the unlawful zone. The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs—all those may lead him to swallow words that are in fact not true threats.

 

Thus, an objective standard—true threats based on what a “reasonable person” would consider a true threat without consideration of the speaker’s state of mind—discourages “uninhibited, robust, and wide-open debate that the First Amendment is intended to protect.” Rogers v. United States, 422 U.S. 35, 48 (1975) (Marshall, J. concurring).

 

Recklessness is good enough. Having held that some kind of state of mind requirement is needed to prosecute a true threat, the SCOTUS examined what level is necessary. In the hierarchy of mens rea with intentional (or as Justice Kagan called it, “purposeful”), knowing, recklessness, the SCOTUS held that recklessness is adequate to prevent the chilling effect and at the same time allow governments to protect those from being threatened.

 

A person acts recklessly when the person “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). The SCOTUS explained that the recklessness state of mind is adequate because it requires proof that the defendant was aware of the impending harm, but made the “deliberate decision to endanger another.” Id. at 694. In the context of a threat, it means “a speaker is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway.’” (quoting Elonis, 575 U.S. at 746 (Alito, J. concurring in part and dissenting in part).

 

The SCOTUS vacated the judgment and remanded the case back to Colorado. At trial, the State needed to only show that a reasonable person would understand Counterman’s statements to be threats and “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.”

 

Justice Sotomayor’s concurrence. Justice Sotomayor agreed that the judgment must be vacated and that a state of mind is required when prosecuting a true threat. She suggests that recklessness is too low of a standard:

 

[T]his Court’s precedent, along with historical statutes and cases, reflect a commonsense understanding that threatening someone is an intentional act. As to what intent is needed, traditionally, 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. This does not require showing that an individual intends to carry through with the threat. But it does require showing that an individual desires to threaten or is substantially certain that her statements will be understood as threatening.

 

While Justice Sotomayor joined the majority’s holding that “some subjective mens rea is required” and that in this particular case recklessness is “amply sufficient[,]” she disagreed with the general holding that recklessness is sufficient for all true threat prosecutions. It was unnecessary for the Court to establish recklessness as the standard in all true threat cases. She was concerned about how even under the reckless standard, people will be prosecuted wrongly:

 

Without sufficient protection for unintentionally threatening speech, a high school student who is still learning norms around appropriate language could easily go to prison for sending another student violent music lyrics, or for unreflectingly using language he read in an online forum. A drunken joke in bad taste can lead to criminal prosecution. In the heat of the moment, someone may post an enraged comment under a news story about a controversial topic. . . .

. . . .

          The burdens of overcriminalization will fall hardest on certain groups. A jury’s determination of when angry hyperbole crosses the line will depend on amorphous norms around language, which will vary greatly from one discursive community to another. Juries’ decisions will reflect their background knowledge and media consumption. . . . Members of certain groups, including religious and cultural minorities, can also use language that is more susceptible to being misinterpreted by outsiders. And unfortunately yet predictably, radical and cultural stereotypes can also influence whether speech is perceived as dangerous. See, e.g., A. Dunbar, C. Kurbin, & N. Scurich, The Threatening Nature of “Rap” Music, 22 J. Psychol. Pub. Pol’y & L. 281, 281-282, 288-290 (2016).

 

For Justice Sotomayor, under the recklessness standard, “there will be some speech that some find threatening that will not and should not land anyone in prison.” In sum, she wrote that the Court did not have to adopt a general standard, but if it did, it should have been intentional conduct. “Our society has often concluded that an intent standard sets a proper balance between safety and the need for a guilty mind, even in cases that do not involve the First Amendment. Surely when the power of the State is called upon to imprison someone based on the content of their words alone, this standard cannot be considered excessive.” Justice Gorsuch joined.

 

Justice Barrett’s dissent. Justice Amy Coney Barrett dissented. She would have upheld the conviction and found no need to establish a subjective test of any kind. True threats lie outside the protections of the First Amendment and putting on a state of mind “unjustifiably grants true threats preferential treatment[.]”

 

The bottom line is this: Counterman communicated true threats, which everyone agrees, lie outside the bounds of the First Amendment’s protection. He knew what the words meant. Those threats caused the victim to fear for her life, and they upended her daily existence. Nonetheless, the Court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result. I respectfully dissent.

 

Justice Thomas joined.

 

Justice Thomas’ dissent. Justice Thomas wrote separately to point out his intense dislike for New York Times v. Sullivan, 376 U.S. 254 (1964). He berated it as a “policy-driven decision[] masquerading as constitutional law.” McKee v. Cosby, 586 U.S. __, __ (2019) (Thomas, J. concurring in denial of certiorari). He once again asked to reconsider that case.