## 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

1. Whether the First Amendment permits punishment of alleged “true threats” based only on an objective reasonable-person standard.
2. 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.


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