Counterman v. Colorado

LII note: The U.S. Supreme Court has now decided Counterman v. Colorado .


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?

Oral argument: 
April 19, 2023

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. Id.

One message hinted that Counterman had made “physical sightings” of C.W. Id. Another message stated that Counterman had seen C.W. doing “things that [she did] out and about.” Id. In 2016, C.W. reported Counterman to law enforcement and obtained a protective order against him. Id. She also canceled some performances she had planned due to worries that Counterman would attend. Id. On May 12, 2016, police arrested Counterman. Id.

Counterman was criminally charged with stalking (serious emotional distress) under Colorado state law. Id.; Colo. Rev. Stat. § 18-3-602(1)(c). To convict Counterman of stalking (serious emotional distress), the prosecution had to prove beyond a reasonable doubt that Counterman had, either directly or indirectly through another, “[r]epeatedly follow[ed], approache[d], contact[ed], place[d] under surveillance, or ma[de] any form of communication with [C.W.], . . . in a manner that would cause a reasonable person to suffer serious emotional distress and d[id] cause [C.W.] . . . to suffer serious emotional distress.” Counterman at 1043-44; § 18-3-602(1)(c).

Counterman moved to dismiss the charge, asserting that its application to his Facebook messages violated his First Amendment right to free speech as well as his speech rights under Article II, Section 10 of the Colorado Constitution. Counterman at 1043. He specifically contended that his messages to C.W. were not constitutionally unprotectedtrue threats,” so his speech should be protected from criminal prosecution under both the federal and state constitutions. Id. at 1043, 1044-45. The trial court rejected Counterman’s motion before trial and again after Counterman renewed it during trial. Id. at 1045. A jury found Counterman guilty and the trial court sentenced him to four and a half years in prison. Id. at 1044. Counterman appealed. Id.

The Colorado Court of Appeals considered whether Counterman’s speech constituted true threats or protected speech. Id. The Court of Appeals relied on the Colorado Supreme Court’s definition of a true threat articulated in People in Interest of R.D., which establishes an objective test. Id. Under the Colorado Supreme Court’s definition, a statement is a true threat if, “considered in context and under the totality of the circumstances,” an intended or foreseeable recipient would reasonably perceive it as “a serious expression of intent to commit an act of unlawful violence.” Id.

In analyzing the context of Counterman’s statements, the court considered Counterman’s apparent feelings of entitlement to a response from C.W., his increasing hostility at her continued silence, his suggestions that he was watching her, as well as C.W.’s “escalating alarm and fear” upon receiving his statements. Id. at 1046-47. Considering the totality of the circumstances, the court reasoned that it was credible to perceive Counterman’s speech as threatening and held that Counterman’s messages constituted true threats. Id. at 1049. The court accordingly affirmed the trial court’s judgment. Id. at 1056. Counterman petitioned the Colorado Supreme Court for review, which denied his petition. Brief of Petitioner, Billy Raymond Counterman at 1. Counterman then appealed to the Supreme Court, which granted certiorari on January 13, 2023. Id.



Counterman argues that, to criminally punish speech, historical precedents required proof of a speaker’s intent to threaten. Brief of Petitioner, Billy Raymond Counterman at 15. First, Counterman asserts that English common law required proof of a speaker’s intent to distinguish “indifferent” speech from criminal speech. Id. at 16. Counterman explains that courts would often infer intent from the speech itself, but intent was still a necessary element. Id. By the early 19th century, courts gradually ceased to infer intent and instead required proof of intent. Id. at 15–16. Counterman acknowledges that some early English cases did not expressly address intent, but he asserts that intent was merely undisputed in those cases, rather than unrequired, for example, in the case of a letter that “plainly convey[ed] a threat to kill.” Id. at 17–18.

Counterman also argues that early American statutes and courts bolstered protections on free expression and had stronger requirements for proof of a speaker’s intent to threaten than English law. Id. at 19. Counterman explains that many statutes required threats to be made “maliciously,” and juries were instructed to determine whether a defendant speaker intended to threaten. Id. at 18. Given the importance of intent, Counterman notes that evidence that a speaker was joking was therefore admissible as defense evidence. Id. Thus, Counterman concludes, these founding-era laws exemplify the importance of establishing a speaker’s subjective intent to threaten in threat prosecutions. Id.

In opposition, Colorado finds that subjective intent was not required in early threat prosecutions. Brief for Respondent, The State of Colorado at 18. Colorado argues that early English courts did not consider a speaker’s subjective intent, but rather used an objective analysis. Id. at 18–19. Specifically, Colorado explains that English courts only instructed juries to find whether the speaker knew what they were saying, and whether an objective person would view the speech as a threat. Id. Furthermore, Colorado contends that Counterman’s examples of early English cases are inapplicable because they do not specifically involve threat offenses and do not address whether it was required for the prosecution to prove intent. Id. at 20–21.

Colorado also denies that early American law required proof of a speaker’s intent to threaten in order to prosecute the speaker. Id. at 19. Colorado argues that many early American statutes required that a person knowingly send a threatening letter but did not require the specific intent to threaten. Id. Similarly, Colorado asserts, early American courts did not require proof of intent, and instead considered whether speech would objectively be considered threatening based on how the words were used in the dictionary and the Bible. Id. at 20. Finally, Colorado argues that although some states in the early American cases cited by Counterman required a finding of malicious intent, the fact that not all states required it underscores that it is not Constitutionally required. Id. at 21.


Counterman argues that the First Amendment protects speech from being regulated merely because it expresses an offensive or distasteful message. Brief of Petitioner at 13. Still, Counterman acknowledges that some types of speech are not protected under the First Amendment. Id. at 14. However, Counterman explains that these exceptions are narrow and must be justified by a history and tradition of restricting the particular type of speech. Id. Furthermore, Counterman argues that the Supreme Court requires proof of a speaker’s criminal intent before punishing any type of unprotected speech. Id. at 20.

First, Counterman points out that, to justify punishing speech as incitement, or speech encouraging listeners to engage in illegal conduct, the Supreme Court requires that the speaker specifically intend to cause “imminent lawless action,” regardless of how the speech “might have been understood.” Id. at 21–22. Second, Counterman argues that under defamation law, a public figure accusing a speaker of injuring their reputation must prove that the speaker acted with “actual malice,” meaning knowledge or reckless disregard of whether a statement was false. Id. at 22. Counterman explains that the Supreme Court required proof of intent in defamation cases to protect freedom of expression and to prevent censorship. Id. Similarly, Counterman asserts that the Supreme Court requires a finding of intent before punishing speech as fighting words, or speech meant to incite violence. Id. at 23–24.

Finally, Counterman asserts that punishment for true threats, the type of unprotected speech most applicable to Counterman’s messages, requires that the speaker intended to threaten. Id. Counterman argues that the Supreme Court’s true threat decisions have never depended on whether a hypothetical reasonable listener would have found the speech to be threatening. Id. at 24–25. On the contrary, Counterman explains that the Court has expressed wariness at applying an objective standard, which it finds to be equivalent to a negligence standard. Id. at 25. Counterman explains that a negligence standard is typically applied in civil cases and is constitutionally insufficient to uphold a criminal conviction in speech cases. Id. Instead, Counterman argues that the Supreme Court, in cases like Virginia v. Black, found that intent is a defining characteristic of true threats. Id. at 27. In that case, the Court held that what the “speaker means to communicate” is the decisive factor in determining whether cross-burning constitutes threatening speech. Id.

Given these Supreme Court precedents, Counterman argues that his messages to C.W. are protected speech, and not true threats, because he had no intent to threaten. Id. at 43. Counterman asserts that the prosecution failed to prove that he was even reckless as to his messages being a threat. Id. at 44. Counterman explains that recklessness would require that Counterman was aware that C.W. could perceive his messages as threatening and yet sent them anyway. Id. Counterman argues that recklessness was not sufficient absent a showing of intent to convict the defendants in Virginia v. Black, and therefore should not suffice in his case. Id. at 44–45.

In opposition, Colorado rejects Counterman’s contention that the Supreme Court requires proof of intent to punish unprotected speech. Brief for Respondent at 25. Colorado explains that certain categories of speech are excluded from the protections of the First Amendment because of the harm they cause, irrespective of the speaker’s intent. Id. at 14. Accordingly, Colorado argues that an analysis of context that foregrounds harm over intent more properly penalizes speech that threatens. Id. at 22. Colorado disputes Counterman’s analysis that Virginia v. Black held the prohibition on cross-burning to be unconstitutional because it failed to consider intent and instead asserts that the statute was unconstitutional because it did not allow for consideration of context. Id. at 24–25. Colorado asserts that speech intended to be threatening is a type of true threat, but intent is not required for all types of true threats. Id.

Colorado argues that analysis of unprotected speech focuses on listeners and the harms inflicted on them. Id. at 25–26. First, Colorado asserts that fighting words are regulated because they provoke a direct and violent harm depending on the context in which they are said. Id. at 26–27. Second, Colorado explains that false advertising is unprotected by the First Amendment because of the harm that speech can have on consumers. Id. at 28–29. Third, Colorado points out that in the defamation context, injured private figures are not required to prove “actual malice” in the same way as public figures. Id. at 30–31. Colorado explains that this is because the law recognizes private figures’ comparative lack of resources to remedy reputational harm with a verbal response, and instead permits a much lower showing of criminal negligence. Id. at 29. Colorado adds that obscenity is likewise assessed according to whether an “average person” would find the speech offensive. Id. at 31–32.

In response to Counterman’s concern that an objective approach risks criminalizing misunderstandings, Colorado explains that consideration of context includes a wide range of factors, including the relationship between the speaker and the victim, the impact of the communication on the victim, the platform of communication, whether the statement was directed to the victim, and the surrounding circumstances. Id. at 34. Colorado asserts that these non-exclusive factors are adequate to assist a court in distinguishing successfully between innocent misunderstandings and true threats. Id. at 34–35.

Colorado applies its context-driven objective test to assert that Counterman’s messages, which included statements that he had seen her in public and wished she would die, are unprotected true threats. Id. at 51. Colorado explains that nothing in the context of the messages indicated that they were jokes. Id. Further, Colorado points out that C.W. never responded, which made her fear that Counterman would actually try to harm her reasonable when his messages became progressively more hostile. Id. Thus, Colorado argues, the context of the messages is sufficient for a reasonable person to find them threatening, and the messages constitute unprotected true threats. Id.



The Foundation for Individual Rights and Expression (FIRE), in support of Counterman, asserts that a true threat analysis that focuses on intent is necessary to protect uninhibited open debate. Brief of Amici Curiae Foundation for Individual Rights and Expression, in Support of Petitioner at 17. FIRE argues that impermissibly centering a reasonable listener’s response to a statement creates a danger that speech will be punished merely because the ideas expressed are offensive to the listener. Id.

FIRE contends that a focus on intent properly punishes those who intend harm while protecting those who speak without ill intent, thereby providing “breathing space” for free expression. Id. at 17-18. In contrast, a singular focus on listeners’ reactions, FIRE explains, would create a “chilling effect” by potentially criminalizing misunderstandings and miscommunications. Id. at 18. If people fear punishment for speech whose meaning was merely misconstrued, FIRE explains, they will self-censor to avoid the risk of liability, either by diluting their messages or by declining to speak at all, even if their speech is merely an attempt at humor, a “religious exhortation[],” or constitutionally protected political hyperbole. Id. at 19.

Colorado counters that an analysis limited to intent does not adequately protect victims from harm. Brief of Respondent, Colorado at 47. For instance, Colorado asserts, stalkers are often deluded as to how their words and actions are being received. Id. Yet, Colorado points out, while stalkers themselves may not recognize the impact of their words and behavior, the psychological and emotional suffering their victims endure is no less real. Id. Additionally, Colorado asserts, counterspeech is useless to rectify threatening speech’s “life-changing harms,” which include victims changing their plans and routines to avoid risks to their personal safety. Id. at 25.

Colorado argues that a focus on listeners’ reasonable reactions to speech preserves ample “breathing room” for free expression while providing protection from the harm wrought by true threats. Id. at 33-34. Colorado argues that words are only the beginning of a true threats analysis, which should also include consideration of surrounding circumstances. Id. at 34. For instance, while some people may find the word “jihad” inherently threatening in isolation, Colorado explains, a focus on context would protect non-threatening religious uses of the word. Id. at 38-39. Colorado maintains that for the same reasons, music lyrics are protected from unjustified regulation through proper consideration of medium of delivery (whether recorded or live performance), audience, and genre conventions. Id. at 37-38.


The Electronic Frontier Foundation (EFF), in support of Counterman, argues that the danger to free speech is heightened by the rise of social media, where the opportunities for misunderstanding are vastly increased. Brief of Amici Curiae Electronic Frontier Foundation, in Support of Petitioner at 5-6, 10. Because different social media sites have their own speech conventions, EFF explains, the commonly understood meaning of speech on one site may not be similarly apparent to those unfamiliar with another community’s lexicon. Id. at 11. Looking to online listeners’ reactions without considering speakers’ intent, the American Civil Liberties Union (ACLU) adds, in support of Counterman, is especially dangerous because a listener’s reaction to decontextualized and idiosyncratic internet speech could be found “reasonable” regardless of the speaker’s original intent. Brief of Amici Curiae American Civil Liberties Union, in Support of Petitioner at 9-10. A focus on listeners’ understanding only, without consideration of speakers’ intent, EFF explains, could transform misunderstandings into bases for prosecution and imprisonment. Brief of EFF at 21. The Cato Institute, also in support of Counterman, explains that because the Internet is “the largest and most important public forum on the planet,” and is easily surveilled, the threat to free speech is especially significant. Brief of Amici Curiae Cato Institute, in Support of Petitioner at 13.

Colorado responds that a focus on listeners’ reactions would not endanger internet speech because consideration of context will maintain a proper dividing line between true threats and merely offensive speech. Brief of Respondent at 41. For instance, Colorado explains, while the “thumbs up” emoji communicates a “hideous message” in some parts of the world, relevant circumstances can clearly indicate whether the use of such an emoji constitutes a genuine true threat. Id. Looking at the entire message thread containing the emoji, the relationship between the parties, and each party’s “community norms and conventions,” Colorado continues, will properly indicate whether a reasonable listener would actually regard such a statement as threatening. Id. Essentially, Colorado argues, a focus on listeners’ reasonable reactions is sufficient to protect speech online, and in particular, is more workable in the Internet age, where barriers to discerning a speaker’s intent are considerably heightened in the anonymity of online communications. Id. at 41, 47-48.



The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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