Counterman v. Colorado

Defendant Billy Raymond Counterman sent numerous disturbing Facebook messages over years to singer Coles Whalen, leading to his stalking conviction and a 4.5-year sentence under an objective “reasonable person” standard. He appealed, arguing the First Amendment requires proof of subjective intent to threaten. The U.S. Supreme Court agreed, holding 7-2 that the state must prove at least recklessness—that the defendant consciously disregarded a substantial risk the communications would be viewed as threatening. The decision vacated the Colorado judgment and remanded for proceedings applying this new mental-state requirement.

The U.S. Supreme Court vacated the lower court's decision in a 7-2 ruling, establishing that a criminal conviction for true threats demands a showing of at least recklessness. The case was remanded for further review consistent with this standard.

Whether the First Amendment requires proof of a defendant's subjective mental state—such as purpose or recklessness—to convict for making a “true threat,” rather than relying solely on an objective reasonable person standard.

The ruling recalibrated the balance between free speech and protection from online harassment by injecting a subjective recklessness threshold. It prompted states to revise stalking statutes and jury instructions, and set a precedent for evaluating digital threats. The decision was praised for avoiding both an overly broad objective test and an impossibly high specific-intent requirement, directly influencing how courts address threatening speech on social media.