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ANALYSIS: Today's Supreme Court Decision in Counterman v. Colorado

Jun 27, 2023

A win for the First Amendment–also a boon for stalkers and harassers!

In a landmark decision that is no doubt sending shockwaves through legal communities and advocacy groups, the Supreme Court just ushered in a major shift in the way threats are legally defined and prosecuted.

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I am not a lawyer. This is not legal advice.

In a move which will likely be hailed by some as a win for free speech but criticized by others as a massive setback for victims of criminal stalking and harassment, the Court has ruled today that the standard for prosecuting threats must include a subjective element of recklessness.

The case, originally brought by a defendant known as Counterman, hinged on the interpretation of threats under the First Amendment. The Court’s decision today rested on balancing two seemingly conflicting interests: preservation of freedom of expression and the protection of people from the very real danger of violent threats.

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This ruling effectively raises the bar for prosecuting true threats.

I. Overview

In a landmark decision that reframes how the legal system interprets threatening speech, the Supreme Court has ruled today, June 27, 2023, in favor of a subjective "recklessness" standard in cases involving true threats of violence. The case, Counterman v. Colorado, is bound to alter the balance between protecting free speech and ensuring public safety and will echo in courtrooms across the nation, fundamentally reshaping how cases involving threatening speech are handled.

Authored by Justice Elena Kagan, the majority 7-2 opinion hinges on an intricate examination of the First Amendment, examining how it interacts with laws designed to shield individuals from threatening conduct. Kagan's opinion argues for a balance that protects free expression without permitting wanton disregard for the safety and well-being of others (Author's Note: I have not yet reviewed the entirety of the dissenting opinions).

The ruling appears groundbreaking in its emphasis on a subjective recklessness standard in adjudicating true threats cases.

Previously, courts could convict a defendant on the basis of an objective standard, merely needing to prove that a reasonable person would perceive the defendant's communication as threatening. However, the Supreme Court's decision necessitates that the prosecution establish that a defendant was consciously aware of the substantial risk that their statements could be viewed as threatening.

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This shift away from an objective standard to a subjective recklessness standard represents a seismic change in how courts will interpret and adjudicate cases involving threatening speech.

Wait, what?

"Mens rea" is a Latin term that means "guilty mind." It's used in law to describe a person's state of mind when committing a crime. In other words, mens rea is all about intention or knowledge of wrongdoing.

To put it in a simpler way, imagine you're playing baseball in your backyard, and you hit the ball through your neighbor's window. If you didn't mean to do it and had no idea that would happen, that's considered a lack of mens rea—you're not guilty in your mind, because you didn't intend to break the window.

Now, let's relate this to the Supreme Court's decision about online threats.

Before this decision, to convict someone of making a threat, prosecutors had to prove the person intended to make a threat—that's mens rea.

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But with this decision, the Court is saying that even if a person didn't intend to make a threat (i.e., lacked mens rea), they can still be guilty if they were "reckless". This means that they knew there was a risk their words could be seen as a threat, but didn't care and said them anyway.

This creates a challenging situation.

Even though it might sound like this makes it easier to convict people for making threats, it's not always that straightforward. It can be tough to determine what someone's intentions were when they made a statement, especially in online environments where nuance and context can be lost. Proving that someone was being reckless, rather than just negligent or ignorant, can be a difficult task for prosecutors.

While this approach may offer greater protection for free speech, concerns have been raised about the potential implications for victims of harassment and stalking. The new requirement for proving recklessness is likely to make securing convictions more challenging and may further deter victims from pursuing legal action.

II. Case Background

At the core of the dispute is Counterman v. Colorado.

Billy Raymond Counterman challenged his conviction for issuing menacing messages to an individual identified as "C.W." His defense argued that proof of a speaker's intent is vital before administering punishment for any type of unprotected speech. Despite acknowledging the offensive nature of his messages to C.W., Counterman vehemently denied any intention to threaten. He criticized the prosecution's failure to prove recklessness in his actions or an intent to threaten.

On the opposite end, Colorado took a stand against Counterman's intent-centric approach. The state underscored the capacity of certain speech types to inflict harm, regardless of the speaker's intent, thereby falling outside the protective umbrella of the First Amendment. In countering Counterman's viewpoint, Colorado advocated for an objective, context-driven analysis that prioritized harm in penalizing threatening speech. Such an analysis takes into account various factors including the speaker-victim relationship, the communication's impact, and the overall circumstances.

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In the context of Counterman's case, the state held that the escalating hostility of his messages, combined with C.W.'s reasonable fear, categorized his speech as unprotected true threats.

As noted by ABA Journal:

Counterman had sent a series of messages to a musician from several different accounts. The musician, C.W., never responded. Counterman’s messages included:

“Five years on Facebook. Only a couple physical sightings.”

“Was that you in the white Jeep?”

“How can I take your interest in me seriously if you keep going back to my rejected existence?”

“I’ve had tapped phone lines before. What do you fear?”

“You’re not being good for human relations. Die. Don’t need you.”

“Talking to others about me isn’t prolife sustaining for my benefit. Cut me a break already. … Are you a solution or a problem?”

“Staying in cyber life is going to kill you. Come out for coffee. You have my number.”

Counterman was ultimately convicted and sentenced to 4.5 years in prison.

III. Activist Perspectives

The case ignited debates on the delicate equilibrium between freedom of speech and freedom from fear and harm.

As noted by Slate:

Counterman maintains, supported by amicus briefs from influential civil libertarian organizations such as the ACLU, the EFF, and FIRE, that stalking cannot be criminally prohibited except when the government can prove that the stalker subjectively intended to terrify his victim. The state of Colorado, supported by amicus briefs from First Amendment scholars, stalking experts, and domestic violence victim advocates, argues that it is enough to prove that the stalking would be terrifying to a reasonable person in light of the totality of the circumstances. If the court rules in Counterman’s favor, delusional stalking—no matter how objectively terrifying or threatening—will be transformed into an inviolable constitutional right.

The Foundation for Individual Rights and Expression (FIRE), in support of Counterman, warned that leaning too heavily on listeners' responses could suppress free speech by potentially criminalizing miscommunications and misunderstandings. They have advocated for an intent-based approach to offer a safe space for free expression.

Contrarily, Colorado posited that a listeners' reactions-focused approach doesn't impinge on free speech. They contended that incorporating context into the analysis could effectively mitigate the harmful aftermath of true threats. According to Colorado, mere words form just the tip of the iceberg in a true threats analysis, with the surrounding circumstances demanding equal attention.

The advent of social media and digital communication has further complicated the issue. Entities like The Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU) sided with Counterman and urged caution when considering online listeners' reactions, pointing out the potential for misunderstandings due to differing online communication styles and vernaculars.

Yet, Colorado remained firm in its stance, asserting that their approach retains efficacy in the digital realm. They believed that understanding the context, including community norms and conventions, would aid in determining whether a statement would be perceived as threatening by a reasonable listener.

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In essence, the legal contention before the Supreme Court seemed to hinge on a pivotal question: Should intent or context and harm hold sway in defining whether speech is a "true threat" beyond the protective reach of the First Amendment?

An article in Slate from April 2023 by University of Miami School of Law professor Mary Anne Franks noted Justice Roberts mocked statements made by the defendant in the case in question during oral arguments,

The court’s discussion was so disconnected from the reality of stalking, so contemptuous of the victims targeted by it, and so awkwardly punctuated with culture-war buzzwords with no obvious bearing to the topic at hand, that it was sometimes hard to believe it was taking place within the Supreme Court and not a Fox News talk show. Perhaps nothing else could be expected from a far-right dominated court that has made its hostility to women and racial minorities abundantly clear. But the progressive justices did little to push back against the chief justice’s snickering tone, or to critique these efforts to turn an oral argument about stalking into a referendum on the supposed crisis of “hypersensitivity.”

The entire article is worth a read for a perspective on how the justices appear to be completely unaware of what the world is like for those targeted with stalking and criminal harassment despite their own brushes with threats and security needs.

IV. Potential Implications

Here is a quick rundown of possible repercussions I can imagine regarding the Court's decision to institute this recklessness standard for true threats:

A New Challenge for Prosecutors: The ruling alters the prosecutorial burden. Prosecutors are now required to demonstrate that a defendant acted recklessly—that they comprehended the potential of their words to be interpreted as threats of violence, yet chose to proceed. This insertion of a subjective element into the legal standard might set a higher threshold for prosecutors, potentially complicating their efforts to secure convictions in threat cases.
A Dip in Convictions? The increased burden of proof might result in a downturn in successful prosecutions of true threats. The challenge of validating recklessness could lead to a decline in convictions or plea agreements.
Free Speech Balancing Act: The adoption of the recklessness standard could shield certain contentious, yet non-threatening, forms of speech from punishment. This could potentially broaden the scope of acceptable discourse, particularly in arenas where speech may be perceived as menacing, but lacks a threatening intent. However, there's a risk that this approach might inadvertently offer refuge to types of speech generally deemed dangerous or injurious.
Shaping Future Laws: This decision could serve as a blueprint for forthcoming legislation concerning threat laws, possibly prompting lawmakers to incorporate the recklessness requirement in future statutes.
Legal Ambiguity? The term "recklessness" may spawn some degree of legal ambiguity until further case law elaborates on what exactly constitutes recklessness in the context of threat laws.
Online Communications in the Crosshairs: The verdict might bear substantial influence on online communication, where deciphering intent can be a conundrum due to the absence of non-verbal cues. This could necessitate more stringent examination of online statements with an ostensibly threatening tone.
Increased Legal Safeguards for Unintentional Threats: This ruling could strengthen legal protections for individuals who unintentionally make statements that can be interpreted as threats. This could lower the risk of criminal charges for accidentally menacing speech.

Settled Cases

The decision could have implications for prior settled cases, particularly if the jurisdiction applied an objective standard in a threat-related case.

Direct Appeals or Pending Cases: Cases that are currently in the process of appeal or have not yet reached a final verdict could be directly affected by this decision. Lawyers for defendants in these cases could use the precedent set by this ruling to argue for a higher standard of proof, requiring the prosecution to prove the defendant's recklessness rather than simply demonstrating that a reasonable person would perceive the statements as threats.
Cases Under Post-Conviction Review: Post-conviction review provides a mechanism for a defendant to challenge their conviction after all appeals have been exhausted. If there's a change in constitutional law, like this ruling, it might open the door for some defendants to argue their cases should be reviewed.
Habeas Corpus Petitions: Defendants who have exhausted all other appeals may file a habeas corpus petition, which allows a court to examine the legality of a person's imprisonment. If a prisoner was convicted under a threat statute that applied an objective standard, they could potentially argue that this ruling renders their imprisonment unlawful.

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It is important to note that most prior cases will likely remain unaffected by this decision. My understanding is that changes in constitutional law do not apply retroactively to cases that have already been finalized, with few exceptions as described below.

For instance, a new rule of constitutional law can be applied retroactively if it related to a "watershed rule" that fundamentally alters the understanding of a basic procedural element, or if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.

"Watershed" Rule?

While "Counterman v. Colorado" case appears to signal significant change in the interpretation of the First Amendment in relation to threat statutes, to classify this change as a "watershed rule" may not be straightforward. The standard set by the Supreme Court for defining a watershed rule is very high. In fact, the Supreme Court has rarely found a new rule that qualifies under this standard since it was introduced in Teague v. Lane in 1989.

A "watershed" rule generally needs to meet two criteria. First, it must be necessary to prevent an impermissibly large risk of an inaccurate conviction. Second, it must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. Whether this would be seen as a "watershed" rule would likely be a matter of interpretation and debate among legal professionals and scholars, but it seems unlikely to me, as a layman.

Lastly, it's important to remember that even if a decision is deemed a "watershed rule," it does not automatically apply retroactively to all preceding cases. Even if the new rule could apply retroactively, overturning a settled case would require showing not just that the rule was misapplied, but that the error had a significant impact on the outcome of the case. In other words, a defendant would generally have to show not just that the court applied the wrong standard for threats, but also that there's a reasonable probability that the verdict would have been different under the correct standard.

Proving Recklessness

In a stalking or harassment case, proving the defendant's recklessness can be complex. It requires showing that the accused was aware that their behavior posed a substantial risk of causing fear or harm, but they disregarded that risk and proceeded anyway.

Here are some potential ways prosecution might prove the defendant's recklessness in a threat-related case:

Pattern of Behavior: Demonstrating a pattern of threatening behavior over time can indicate recklessness. If the defendant repeatedly engaged in behavior that a reasonable person would understand to be threatening, it suggests they were aware of the risk their behavior posed but continued anyway.
Past Warnings or Complaints: If the defendant was warned about their behavior—whether by the victim, law enforcement, or a third party—yet continued to act in a threatening manner, this could serve as evidence of recklessness. They knew their actions were causing distress but didn't alter their conduct.
Context: The context of the defendant's actions can be important. If they made threatening comments in a context where they should have known they would be taken seriously, that could be evidence of recklessness.
Explicit Threats: Explicit threats of violence or harm made by the defendant can also be evidence of recklessness. This is especially true if the threats were made repeatedly or in a way that would be interpreted as serious by a reasonable person.
Reactions to Defendant's Behavior: If the victim or others reacted in a way that made it clear the defendant's behavior was being perceived as threatening, and the defendant continued that behavior, this could serve as evidence of recklessness.

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Remember that the role of the victim is to provide testimony, evidence, and cooperate with the prosecution's investigation, but this now-higher burden of proving recklessness ultimately lies with the state.

Strategic Implications for Victims

This decision certainly has implications for victims of stalking and could shape their future strategies for self-protection and legal recourse.

Legal Advice: Considering the potential complexities introduced by the need to demonstrate recklessness, victims might find it beneficial to seek legal advice early in the process to ensure they're taking appropriate steps to build a solid case.
Documentation: Given that the standard now requires a subjective element, it's even more essential for victims to document each instance of stalking or harassment thoroughly. Victims should also document any emotional distress they are experiencing as a result of the stalking. This documentation could serve as critical evidence to demonstrate a pattern of behavior that the defendant was aware of and disregarded the risk it posed, and demonstrate the harm caused by the stalker's behavior.
Timely Police Reports: Reporting incidents to the police promptly can create a legal record that the person was engaging in threatening behavior, which could support an argument that they were recklessly disregarding the potential interpretation of their actions as threatening.
Clear Communication: Although it might not always be safe or advisable to do so, in some instances, victims might be encouraged to clearly communicate to their stalker (in a written or recorded form) that the behavior is unwanted and perceived as threatening. This communication could serve as evidence that the stalker was aware their actions could be interpreted as threatening, hence meeting the recklessness standard. However, it's crucial that this is done safely and with the advice of a legal professional or law enforcement officer.

Remember that every situation is unique, and the safest and most effective approach will depend on individual circumstances.

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In any situation involving stalking or harassment, it's crucial to prioritize personal safety and to consult with professionals who can provide guidance tailored to the specifics of the situation.

V. Conclusion

The Supreme Court made a decision today that changed a particular legal standard when it comes to making and prosecuting threats, and the impact of this decision is beginning to percolate.

They've introduced the recklessness standard as the legal way with which to decide if a threat is legally punishable. While this decision appears to be geared towards the protection of free speech, there are worries about what this means for victims of stalking and harassment. It will certainly now become more difficult for lawyers to prove a threat in court, which could in turn make it harder to obtain convictions.

This decision could transform how we communicate, particularly online, where messages can be easily misconstrued. It will take time and further court decisions to obtain a clear picture of what "recklessness" really means. There is also much uncertainty about what this decision may mean for cases which have already been settled.

As we navigate these new legal waters, the Supreme Court's decision serves as a poignant reminder of the delicate balance we must maintain between safeguarding human rights and ensuring mutual safety.

Dr. Mary Anne Franks had this to say:

Gist of the Counterman decision: the Supreme Court has just decreed that stalking is free speech protected by the First Amendment if the stalker genuinely believes his actions are non-threatening. That is, the more deluded the stalker, the more protected the stalking.
— Dr. Mary Anne Franks (@ma_franks) June 27, 2023

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