Counterman v. Colorado

Supreme Court of the United States

Counterman v. Colorado
Supreme Court of the United States
6/27/23, Justice Kagan
Topics: First Amendment True Threat

Summarizing criminal cases is beyond the scope of Terry’s Takes, a personal injury law update. That said, Counterman v. Colorado is the kind of case that will be taught in law schools. It could also have effects in tort cases or even in 1983 civil actions.

In this case, a guy kept harassing a singer by creating new Facebook profiles every time she blocked him. He kept sending messages with fantasies about violence involving her, but the messages were phrased in a way that did not make it explicit that he planned to inflict this violence on her. Regardless, she eventually reported the harassment to the cops after she started essentially living in fear of going out in public. He was charged with—and convicted of—a crime under Colorado state law that had, as its mens rea element, whether the statements would place an objectively reasonable person in fear, and he argued that the crime violated the First Amendment right to free speech due to the lack of any requirement of intent to threaten.

The State countered that a “true threat” is exempted from First Amendment protection.…countered with the argument that without a showing of any subjective understanding that he was threatening her, there could be no “true threat.”

For the first time, the United States Supreme Court has held that in order to prosecute someone for a crime involving a threat, in order to qualify for the “true threat” exception to the First Amendment, the State must show at least a “reckless” mens rea in terms of the person making the threat. In this context, a recklessness standard is shown by demonstrating that a person consciously disregarded a substantial and unjustifiable risk that his conduct will cause harm to another. Because the state crime had an objective standard and no element of subjective mens rea, his conviction violated the First Amendment. Interestingly, JUSTICE KAGAN wrote the majority, and C.J. ROBERTS, and JUSTICES ALITO, KAVANAUGH, and JACKSON joined. JUSTICE SOTOMAYOR CONCURRED SPECIALLY, and JUSTICE GORSUCH JOINED HER OPINION. JUSTICES THOMAS and BARRETT both wrote separate DISSENTS, though JUSTICE THOMAS joined

Barrett’s dissent.

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