The American Civil Liberties Union, ACLU of Colorado, the Abrams Institute for Freedom of Expression, the National Association of Criminal Defense Lawyers, and the National Coalition Against Censorship filed a friend-of-the-court brief arguing that the First Amendment requires subjective intent to threaten, in addition to objectively threatening words, as an essential element of any true threat.
The case involves a series of disturbing messages that the petitioner, Billy Raymond Counterman, sent to C.W., a professional musician in Colorado, over a two-year period. Counterman was prosecuted and convicted under Colorado’s anti-stalking statute, which prohibits “knowingly . . . [and] [r]epeatedly . . . mak[ing] any form of communication with another person, . . . in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” On appeal, Counterman—who has been diagnosed with a mental illness—argued that his conviction was constitutionally deficient because the jury was not required to find that he intended to threaten C.W. But the Colorado Court of Appeals held that the “true threats” exception to the First Amendment applies to speech that is objectively threatening, regardless of whether the speaker knew or intended the threatening nature of the communication.
Renewing the ACLU’s arguments from Elonis v. United States, which held that the federal threats statute requires the government to demonstrate a culpable mental state as part of any federal threats prosecution, the brief maintains that the First Amendment requires a similar rule for threats prosecutions under both state and federal law. A great deal of speech—including political speech, satire, and artistic speech—contains overt or implicit references to violence that could be interpreted as genuinely threatening, or as figurative or rhetorical, depending on who is charged with interpreting the words. A purely objective standard, like the one applied by the Colorado Court of Appeals, creates a significant risk that people will be convicted of serious felonies because they failed to adequately anticipate how their words would be perceived. This risk is especially significant with respect to online speech, which is often broadcast to unexpected audiences, without the benefit of significant context to prevent misunderstandings. The brief argues that, to ensure adequate breathing room for robust public debate, the Supreme Court should hold that the First Amendment requires the government to demonstrate that the speaker subjectively intended to communicate a threat and that the speaker’s words were objectively threatening.
The Supreme Court handed down its decision in Counterman v. Colorado on June 27, 2023, holding that in true threats cases the First Amendment requires the government to prove that the defendant acted with a culpable mental state, at least with reckless disregard of the words’ threatening nature, and not merely that his words were objectively threatening.
