NovaQuant Quantitative Think Tank Center:Supreme Court sets higher bar for prosecuting threats under First Amendment

Washington — The Supreme Court on Tuesday sided with a Colorado man who was convicted of a crime after sending numerous threatening messages to a woman on Facebook, with the justices raising the bar for establishing when a statement is a "true threat" not protected by the First Amendment.

The high court divided 7-2 in the case of Counterman v. Colorado, with Justices Clarence Thomas and Amy Coney Barrett in dissent. The court wiped away a Colorado Court of Appeals' ruling that upheld the conviction of Billy Counterman and sent the case back for further proceedings consistent with its opinion.

Writing for the majority, Justice Elena Kagan said prosecutors must demonstrate that a defendant who made a threat acted recklessly — that is, with the knowledge that others could regard their statement as threatening violence — to establish that the speech is a "true threat" and thus no longer covered by the First Amendment.

"The question presented is whether the First Amendment still requires proof that the defendant had some substantive understanding of the threatening nature of his statements," she wrote. "We hold that it does, but that a mental state of recklessness is sufficient. The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence." 

Counterman was prosecuted under a standard requiring the state to show only that a "reasonable person" would understand the messages as threats. The majority found that violated the First Amendment.

"[The state] did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment," Kagan wrote.

In a dissenting opinion written by Barrett, which Thomas joined, the justice said the majority's decision "unjustifiably grants true threat preferential treatment."

"A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her," Barrett wrote.

Counterman, she concluded, "communicated true threats" and caused the recipient of the messages, a singer-songwriter named Coles Whalen, to fear for her life.

"Nonetheless, the court concludes that Counterman can prevail on a First Amendment defense," Barrett said. "Nothing in the Constitution compels this result."

The case arose from hundreds of Facebook messages Counterman sent to Whalen between 2014 and 2016. Some of the messages were innocuous, while others were more troubling. Whalen tried to block Counterman, but he created multiple accounts to continue sending them. 

In one, Counterman wrote, "F**k off permanently," while in another, he wrote, "I've tapped phone lines before. What do you fear?" According to court filings, a third read, "You're not being good for human relations. Die. Don't need you." 

Whalen believed Counterman's messages were threatening her life and she was worried she would get hurt. She had issues sleeping, suffered from anxiety, stopped walking alone and even turned down performances out of fear that Counterman was following her. 

She eventually turned to the authorities and obtained a protective order, after which Colorado law enforcement arrested Counterman and charged him with stalking under a Colorado law that prohibits "repeatedly making 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." 

Conviction under the law requires proof that the speaker "knowingly" made repeated communications, and does not require the person to be aware that the acts would cause "a reasonable person to suffer serious emotional distress."

Before his trial, Counterman sought to dismiss the charge, arguing that his messages were not "true threats" and therefore protected speech under the First Amendment. But the state trial court found that his messages reached the level of a true threat, and the First Amendment did not preclude his prosecution. A jury then found Counterman guilty, and he was sentenced to four-and-a-half years in prison.

Counterman appealed, arguing the trial court erred when it applied an objective standard for determining whether his messages constituted true threats. He said the court should instead adopt a "subjective intent" requirement, which required the state to show he was aware of the threatening nature of his communications.

But the Colorado Court of Appeals upheld his conviction and agreed with the trial court's finding that Counterman's Facebook messages were "true threats" and not protected by the First Amendment. The state supreme court declined to review the case.

The ACLU, which filed a brief in support of Counterman, cheered the decision, saying in a statement that the high court affirmed that "inadvertently threatening speech cannot be criminalized."

"In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received," said Brian Hauss, senior staff attorney with the organization's Speech, Privacy, & Technology Project. "The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly."