Counterman v. Colorado

Decided: June 27, 2023
Citation: Counterman v. Colorado, 600 U. S. ___ (2023)
Appeal from: Colorado Court of Appeals
Case document: Counterman v. Colorado

Facts of the case
Colorado man Billy Counterman had an intense obsession with female singer-songwriter Coles Whalen. From 2014 to 2016, he sent her various disturbing messages from his Facebook account. Each time Whalen blocked his account, he made new profiles to write to her again. Some of his messages suggested he knew her location, while others suggested he wanted her to die or be killed. These messages deeply affected Whalen, causing her to change her daily routine. Counterman was arrested and criminally charged with stalking. He argued that the charges against him would violate his right to free speech because they were not “true threats”. The Colorado trial court convicted him of stalking under a state law restricting speech if a reasonable person could perceive it as a threat. His conviction was affirmed by the Colorado Court of Appeals, and the Colorado Supreme Court denied review. In January of 2023, the Supreme Court granted Counterman a writ of certiorari.

Question for the Court
This case asks the Court to clarify the standard for determining whether a statement is a true threat, punishable by law, or free speech protected by the First Amendment.

In a 7-2 decision, authored by Justice Kagan, the Court ruled that for a threat prosecution, proof of subjective recklessness is required – that the defendant consciously disregarded that a reasonable person may interpret their words as an act of intimidation or a threat. Therefore, the majority found that Counterman’s prosecution violated the First Amendment. Justice Thomas and Barrett filed dissenting opinions.

Free press implications
The Supreme Court’s decision to adopt a recklessness test, which applies to both civil and criminal contexts, shelters journalists from good faith reporting by requiring proof of intent to threaten. The ruling also reinforces the importance of the actual malice standard in the 1964 decision in New York Times v. Sullivan, continuing to protect journalists when facing defamation claims.

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