Facts
- From about 2014 to 2016, Billy Raymond Counterman sent a Colorado singer-songwriter (C.W.) hundreds of unsolicited Facebook messages.
- Counterman and C.W. had never met; C.W. did not respond. When blocked, Counterman created new accounts and continued messaging.
- The messages ranged from familiar to hostile and ominous, including comments suggesting surveillance and statements wishing death or implying violence.
- C.W. became fearful and changed her behavior, including avoiding being alone, declining social engagements, and canceling performances, before contacting law enforcement.
- Colorado charged Counterman under a stalking provision prohibiting repeated communications made in a manner that would cause a reasonable person serious emotional distress and that in fact caused such distress.
- The trial court rejected Counterman’s First Amendment challenge and applied an objective test focusing on how a reasonable person would perceive the communications.
- A jury convicted Counterman of stalking based on serious emotional distress, and he received a prison sentence.
- Colorado’s appellate court affirmed; the state supreme court declined review.
Issues
- Whether the First Amendment permits punishment of alleged “true threats” based only on an objective reasonable-person standard.
- Whether the Constitution requires proof of the speaker’s subjective mental state regarding the threatening character of the communication, and if so, what minimum mens rea is required.
Decision
- The Supreme Court vacated the conviction and remanded.
- The Court held that the First Amendment requires proof that the defendant had some subjective understanding of the threatening nature of the statements.
- The constitutionally required minimum mens rea is recklessness: conscious disregard of a substantial risk that the communication would be viewed as threatening violence.
- Because the jury instructions allowed conviction under a purely objective standard without a recklessness (or higher) requirement, the conviction could not stand.
Legal Principles
- “True threats” may be punished consistent with the First Amendment, but constitutional limits apply to avoid chilling protected speech.
- For criminal liability based on threatening speech, the State must prove at least recklessness as to whether the statements would be understood as threats of violence.
- An objective standard focusing only on listener perception (reasonable-person test) is insufficient when it imposes liability without any showing of subjective fault.
- Requiring purpose or knowledge is not constitutionally required; recklessness is the minimum standard that balances protection from fear of violence with protection for lawful expression.
- Where a conviction rests on instructions omitting the required mens rea, the judgment must be vacated for further proceedings consistent with the constitutional standard.
Conclusion
The Supreme Court held that punishing “true threats” requires proof that the speaker at least recklessly disregarded a substantial risk that the communication would be understood as a threat of violence, and it vacated a stalking conviction obtained under a purely objective reasonable-person test.