U.S. Supreme Court Extends First Amendment Rights While Limiting Colorado Law on Stalking

by Alana Rosen

Counterman v. Colorado, 600 U.S. 66 (2023).

On June 27, 2023, the U.S. Supreme Court issued a decision on Counterman v. Colorado, a case focused on a Colorado stalking law that prohibits repeated communications that would cause a reasonable person to suffer serious emotional distress and that do, in fact, cause a person to suffer emotional stress.[1] The U.S. Supreme Court overturned a Colorado man’s conviction for stalking a local musician, saying the state did not sufficiently establish the defendant’s actions as a “true threat” to the victim. 

In this case, from 2014 to 2016, Billy Counterman sent hundreds of Facebook messages to C.W., a Colorado musician. The two had never met and C.W. never responded to Counterman’s messages. C.W. tried to block Counterman but he created a new Facebook account each time and continued contacting C.W. Some of Counterman’s messages contemplated violent harm befalling C.W., which put her in a constant state of fear and anxiety, affecting her day-to-day life. C.W. stopped walking alone and attending social engagements. She also canceled music performances, causing financial strain. Eventually, C.W. contacted law enforcement. In 2016, Counterman was arrested and charged with one count of stalking (credible threat), one count of stalking (serious emotional distress), and one count of harassment.

Counterman moved to dismiss the charges on First Amendment grounds, arguing that his messages were not “true threats” pursuant to section 18-3-602 (1)(c), C.R.S. The trial court decided, however, Counterman’s statements did rise to the level of a “true threat” and ruled that the First Amendment posed no bar to prosecution. The trial court sent the case to a jury, which found Counterman guilty and sentenced him to four-and-a-half years in prison. On appeal, the Colorado Court of Appeals affirmed the conviction. The Colorado Supreme Court subsequently declined to review the case.

The U.S. Supreme Court decided to hear the case because courts have been divided on whether the First Amendment requires proof of a defendant’s mindset in “true threat” cases. This is known as a “mens rea standard.[2] 

In a 7-2 decision, Justice Kagan authored the majority opinion. She stated that while the First Amendment protects freedom of speech, there are a few limited, “historic and traditional categories” of speech—incitement, defamation, and obscenity—that are not protected.[3] “‘True threats’ of violence” Justice Kagan stated, are “serious expression[s] conveying that a speaker means ‘to commit an act of unlawful violence.'” The Court noted that in previous cases, the Court has stated that the existence of a threat depends on the recipient’s perception and not the speaker’s intent.

The Court acknowledged that the First Amendment may still demand a true threat to be subject to a subjective mental-state requirement that may shield some true threats from liability. In her concurrence, Justice Sotomayor stated that society’s discourse occurs more frequently on the Internet, specifically on social media. The rapid changes to communication and information transmission has changed what society accepts as acceptable behavior. Justice Sotomayor went on to say that online communication can lack context clues, such as who is speaking, the tone of voice, and expression. She noted that without sufficient protection for unintentionally threatening speech, comments made in the heat of the moment online could lead to criminal prosecution.

Justice Kagan noted the reason the First Amendment may demand a subjective mental state requirement relates to what is known as a “chilling effect on speech.” The Court further reasoned that a prohibition on speech may result in self-censorship of speech. One tool to prevent that outcome is to require the State to establish that a defendant acted with a culpable mental state. The Court recognized that this requirement comes at the cost of shielding threatening speech when the State cannot prove what a defendant thought. However, doing so reduces the prospect of chilling fully protected expression. The Court recognized that even though a culpable mental state may lessen the chill of protected speech, it makes prosecution of certain types of communications harder. To balance these two concerns, the Court considered the appropriate mens rea standard to apply.

The Court held that among mens rea standards, a determination of recklessness offers a suitable standard. Recklessness is morally culpable conduct involving a “deliberate decision to endanger another.” The Court stated that in a “true threat,” a speaker is aware that others could regard their statements as threatening violence and but delivers the statements anyway.

The Court held that in Counterman’s case, the Colorado district court failed to consider Counterman’s understanding of his statements as threatening, and in doing so violated Counterman’s First Amendment rights. The Court therefore vacated the judgment of the Colorado Court of Appeals and remanded the case back to the Colorado district court for further proceedings consistent with the Court’s opinion.

[1] Section 18-3-602 (1)(c), C.R.S.

[2] Mens rea is the state of mind statutorily required to convict a defendant of a particular crime.

[3] Justice Kagan was joined by Chief Justice Roberts, and Justices Alito, Kavanaugh, Jackson, Sotomayor, and Gorsuch. Justice Sotomayor and Justice Gorsuch concurred in part and concurred in the judgement. Justices Thomas and Barrett dissented.