The US Supreme Court ruled on June 27, 2023, in a 7-2 decision, that statements that qualify as “true threats” are not protected by the First Amendment to the US Constitution – unless the government can show that the defendant who made the statements had some understanding of the threatening nature of the threats. This means, in short, that there needs to be some subjective (personal) evidence of the threat’s potential for harm, as opposed to objective (what would a reasonable person think) evidence. The Supreme Court also found that subjective evidence of the threatening nature of the statements included showing that the statements were reckless.

The case – Billy Raymond Counterman, Petitioner v. Colorado, presented the question:

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.

The Supreme Court held, “The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness.”

The history of the Counterman case

Starting in 2020, Billy Counterman sent numerous messages to singer-songwriter Coles Whalen that foretold her death and indicated that was familiar with her movements and actions. The messages sent by Counterman were thousands of Facebooks messages sent over a six-year timeframe. Examples of the statements included: “You’re not being good for human relations. Die. Don’t need you.” As Ms. Whalen tried to block the messages, Counterman would create new accounts and write statements like “Seems like I’m being talked about more than I’m being talked to. This isn’t healthy.”

Counterman was arrested in 2016 and subsequently convicted of stalking in Colorado. His sentence was four and a half years in prison. His conviction was confirmed by the Colorado Court of Appeals and Colorado Supreme Court. The Colorado courts reasoned that statements (even threats) are not free speech if a reasonable person would think the statements are threatening, and that there was no need to examine the subjective intent of the speaker.

The opinion of the US Supreme Court

Justice Kagan wrote the majority opinion for the Court, finding that the State could not prove that Counterman was aware of how his messages were being construed. From her opinion:

The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements. We hold that it does, but that a mental state of recklessness is sufficient. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.

The US Supreme Court sent the case back to Colorado for application of the Court’s new threat standard. The dissent and opponents to the Supreme Court’s decision argue that the Supreme Court’s ruling in Counterman essentially uses the First Amendment to protect stalking.

What does the First Amendment actually say?

The First Amendment to the US Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

While the First Amendment protects most forms of speech, there are exceptions for defamation, inciting violence, obscenity, and true threats. One classic exception is the case of Schenck vs. US which states that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Parenthetically, most people who quote this famous line omit the word “falsely” and include the word “crowded” before the word theater.

Defining “threats” is complicated for every court

In the matter of threats, the rulings of the lower courts were conflicting. Some lower courts used a subjective standard and some used the reasonable person standard. Colorado used the reasonable person standard. The current White House administration filed an amicus brief in support of Colorado due to concerns about increased threats and violence against public officials.

In her majority opinion, Justice Kagan also wrote that the standard for recklessness involves “insufficient concern with risk, rather than awareness of impending harm.”

Justice Sonia Sotomayor (and Justice Gorsuch, in part) agreed with Justice Kagan’s judgment but added, “There is simply no need to reach out in this stalking case to determine whether anything more than recklessness is needed for punishing true threats generally.”

Justice Amy Coney Barret dissented, stating the Court’s ruling “unjustifiably grants true threats preferential treatment.” Justice Clarence Thomas agreed with Justice Barrett and then switched gears by addressing the 1964 Supreme Court case of New York Times Co. vs Sullivan, a case about the requirements for proving libel when the subject of the statements are public figures.

Opponents of the decision argue the ruling protects stalkers who fervently believe their conduct is not threatening. Supporters of the ruling argue that the Supreme Court affirmed that inadvertent threatening speech would now not be criminalized.

So – where does the Court’s decision leave us regarding threats?

The effect of the decision on threat cases is uncertain. It’s expected that while the reckless standard won’t change the results of most cases, it could help some defendants when reckless conduct didn’t exist or cannot be shown beyond a reasonable doubt.

True threats should be prosecuted under state law. In Maryland, for example, there are different laws for threatening a state or local official (a misdemeanor crime that can lead to either a $2000 fine and/or up to three years in prison) and for  “threaten[ing] to commit or threaten[ing] to cause to be committed a crime of violence… that would place five or more people at substantial risk of death or serious physical injury… if the threat were carried out.” This is also a misdemeanor, but the penalties are much stuffer: up to 10 years in prison and/or up to $10,000 in fines.

But in both examples, those threats must be knowingly made. They must be intentional. Think about it: how often have you heard someone say “I could just kill so-and-so” or seen someone leave a rude comment on a social media site? This is why the “reasonable” standard applies. It’s also why the Counterman decision was correct: if a prosecutor cannot prove that the accused was being intentional in his or her threats, or that he or she truly understood how those words would be taken, then it’s not reasonable to assume that the threats were real and worthy of criminal charges, let alone a conviction.

There are three lessons to be learned here:

• First, that the First Amendment must be protected at all times,
• Second, that “intent” is the most important factor in any criminal case, and
• Third, that you should always hire an attorney for any criminal charge because cases can be won when opposing counsel hasn’t done its job well.

A conviction for criminal offenses like terroristic threats or stalking can lead to lengthy criminal sentences and fines. Often there are defenses. The government does have the burden of proving its case beyond a reasonable doubt. At Carey Law Office, we’ve been fighting for criminal defendants in Bowie, Crofton, and throughout Maryland for nearly 40 years. We understand the laws, court decisions, and rules of evidence that can help obtain acquittals, dismissals, and plea bargains. We will fight to keep your freedom and your reputation. Call our offices or fill out our contact form to schedule a consultation. We have offices in Bowie, Crofton, and Owings, and also serve Calvert County and the surrounding areas.