Counterman v. Colorado

In Counterman v. Colorado, Billy Raymond Counterman was convicted of stalking for sending numerous Facebook messages to singer Coles Whalen from 2014 to 2016. Some messages made her fear for her safety. Colorado courts applied an objective reasonable-person standard to find the messages were true threats. The U.S. Supreme Court granted review on the mental state required by the First Amendment. On June 27, 2023, Justice Elena Kagan wrote that true threats are not protected speech, but the government must prove at least recklessness, meaning the defendant consciously disregarded a substantial risk that the communication would be viewed as threatening. The Court vacated the conviction and remanded.

The Supreme Court held that the First Amendment requires a subjective mental state of at least recklessness in true-threat prosecutions. It vacated Counterman's conviction and remanded the case for application of the recklessness standard.

Whether the First Amendment permits a true-threat conviction based solely on an objective reasonable-person standard, or whether it requires proof that the defendant subjectively knew or recklessly disregarded the threatening nature of the statement.

The decision strengthened First Amendment protections for online and other speech by requiring prosecutors to prove a defendant's subjective awareness of a statement's threatening character. It makes stalking and threat prosecutions more demanding, especially in cases involving ambiguous or repeated communications, and clarifies the constitutional boundary between protected speech and true threats.