The Supreme Court of the United States

Counterman v. Colorado

No. 22–138                       6/27/23

Issue:

Does the First Amendment require proof that the defendant had some subjective understanding of the threatening nature of his statements in a harassment prosecution?

Holding:

Yes. The State must prove mens rea, that the defendant had some subjective understanding of his statements’ threatening nature in a true threat or harassment case; however, the First Amendment requires no more than a showing of recklessness. A recklessness standard means showing that a person “consciously disregarded a substantial and unjustifiable risk that his conduct will cause harm to another.” Read opinion.

Concurrence (Sotomayor, J., Gorsuch joining in part):

“Where I part ways with the Court is that I would not reach the distinct and more complex question whether a mens rea of recklessness is sufficient for true-threats prosecutions generally. Further, requiring nothing more than a mens rea of recklessness is inconsistent with precedent, history, and the commitment to even harmful speech that the First Amendment enshrines. I therefore respectfully concur only in part and in the judgment.”

Dissent (Thomas, J.):

“I write separately to address the majority’s surprising and misplaced reliance on New York Times Co. v. Sullivan, 376 U.S. 254 (1964). … It is … unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence.”

Dissent (Barrett, J., joined by Thomas, J.):

“As everyone agrees, the statute requires that the speaker understand the meaning of his words. The question is what more the First Amendment requires. Colorado maintains that an objective standard is enough—that is, the government must show that a reasonable person would regard the statement as a threat of violence. Counterman, however, argues that the First Amendment requires a subjective test—that is, the speaker himself must intend or know the threatening nature of the statement. It should be easy to choose between these positions. True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard. Nonetheless, the Court adopts a subjective standard, though not quite the one advanced by Counterman. The Court holds that speakers must recklessly disregard the threatening nature of their speech to lose constitutional protection. Because this unjustifiably grants true threats preferential treatment, I respectfully dissent.”

Commentary:

This is a very important case for all prosecutors—including Texas prosecutors—to read and understand. Here, the SCOTUS adds a subjective mens rea element to any offense where the defendant makes a “true threat,” which will require the prosecution to prove that the defendant, himself, subjectively knew the threatening nature of his statement. Stated alternatively, it will no longer suffice to establish the threatening nature of the defendant’s statement that an objective, reasonable person, alone, would have regarded the statement as threatening. Note that the SCOTUS qualified its holding by explaining that a mens rea of recklessness is all that the State must prove to pass constitutional muster in this setting. So, putting all of this together, the prosecution must prove that the defendant, himself, was subjectively aware of but consciously disregarded a substantial and unjustifiable risk that another person would regard the defendant’s statement as threatening. 

You should expect and prepare for First-Amendment challenges based on this decision in prosecutions involving several Texas statutes—including Harassment, Stalking (when based on Harassment), and Terroristic Threat—which are similar to the beleaguered Colorado Stalking statute at issue here in that they utilize only an objective standard for evaluating the threatening nature of a defendant’s statements. The offense of False Alarm or Report should not be impacted by this decision because it already requires that the defendant subjectively know that his report is false or baseless.

Proof of a defendant’s subjective, reckless mens rea in impacted cases will likely be mostly circumstantial, so get creative and work with the police, your investigators, your complainants, etc., to marshal any evidence you can find that will show the defendant subjectively was aware of the threatening nature of his statements (e.g., communications to others or social-media posts bragging about placing the complainant in fear, etc.).