Counterman v. Colorado
Issues
Is speech a true threat, unprotected by the First Amendment, only when the speaker intended it as threatening, or is it enough for the government to show that a reasonable person would find the speech threatening?
This case asks the Supreme Court to determine whether “true threats,” which are unprotected by the Free Speech Clause of the First Amendment, may be established under a subjective or objective test. Billy Raymond Counterman argues that historical common law practice and Supreme Court precedents require that a speaker subjectively know or intend their speech to be threatening in order for the speech to be a “true threat” unprotected by the First Amendment. On the other hand, Colorado argues that a context-driven objective test is supported by precedent and permissible under the First Amendment. This case has implications for the balance between protecting people from the harmful effects of threatening speech and preventing unjust censorship of political, religious, and artistic expression.
Questions as Framed for the Court by the Parties
Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.
In 2014, a singer-songwriter named C.W. received a Facebook friend request from Billy Raymond Counterman. People v. Counterman at 1042-43. Over the next two years, Counterman proceeded to send her direct messages that C.W. found “weird” and “creepy.” Id. at 1043. C.W. never replied to any of the messages and repeatedly blocked Counterman on Facebook to prevent him from messaging her further, but he continued making new accounts and messaging her.
The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.
Additional Resources
- Matt Ford, The Supreme Court Will Decide the Line Between Free Speech and Violent Threats, The New Republic (Feb. 15, 2023).
- Adam Liptak, When do Creepy Facebook Messages Cross a Constitutional Line?, New York Times (Feb. 20, 2023).
- Kimberly Strawbridge Robinson, Justices to Consider ‘True Threats’ In Latest Free Speech Dispute, Bloomberg Law (Jan. 13, 2023).
- Debra Cassens Weiss, Supreme Court Will Hear Case of Convicted Stalker to Decide Mental State Needed for “True Threats” Conviction, ABA Journal (Jan. 17, 2023).