Counterman v. Colorado:  “True threats” prosecutions require mens rea of “recklessness” to not violate First Amendment
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
           Prosecution for making a “true threat” requires the State to prove the defendant at least had a mens rea of “recklessness” in order to not violate the First Amendment, the U.S. Supreme Court held June 27 in Counterman v. Colorado.
           “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening”, the Court ruled.
           Over the course of two years, Billy Counterman sent hundreds of Facebook messages to a local singer, who he had never met.  The singer tried unsuccessfully to block his messages, but Counterman found ways to resume contact.
           The messages ranged from “Good morning sweetheart”, to suggesting he was watching her – “Was that you in the white Jeep?” – to angry – “F—k off permanently” and “Staying in cyberlife is going to kill you.”
           The messages caused the singer to stop walking alone, and cancel performances and social engagements because she feared for her life.
           Colorado charged Counterman under a statute making it unlawful to repeatedly communicate with another person in a manner that would cause a “reasonable person” to suffer serious emotional distress and does cause the person such distress.
           Counterman contended the First Amendment required the State prove he was aware of the threatening nature of his messages.
           The trial court ruled the State to had to prove only that an objective, “reasonable person” would have viewed the messages as threatening.
           The Colorado appellate courts affirmed Counterman’s conviction.
           The Supreme Court granted cert because lower courts were divided on whether the First Amendment requires proof of a defendant’s subjective mental state in “true threats” prosecutions, and if so, what mens rea is sufficient.
           The Court held that “true threats” prosecutions require a mens rea of at least recklessness, in an opinion joined by five justices.
           “True threats of violence, everyone agrees, lie outside the bounds of First Amendment protection”, the Court said.  “And a statement can count as such a threat based solely on its objective content.”
           The issue is whether the First Amendment nevertheless requires the State to prove a defendant was aware, in some way, of the threatening nature of his comments, the Court said.
           “Colorado argues that there is no such requirement”, the Court said.  But “Counterman contends that there is one” because “the absence of such a mens rea requirement will chill protected, non-threatening speech.”
           Counterman’s view is “more consistent with our precedent”, the Court said.  “To combat the kind of chill he references, our decisions have often insisted on protecting even some historically unprotected speech through the adoption of a subjective mental-state element.”
           The First Amendment requires a subjective mental-state requirement to prevent people from self-censoring, in worry that their speech could cause them to become “entangled in the legal system”, the Court said.
           An “important tool” to prevent self-censorship of even protected speech “is to condition liability on the State’s showing of a culpable mental state”, the Court said.
           “Such a requirement comes at a cost:  It will shield some otherwise proscribable (here, threatening) speech because the State cannot prove what the defendant thought”, the Court said.  “But the added element reduces the prospect of chilling fully protected expression.”
           “That kind of ‘strategic protection’ features in our precedent concerning prominent categories of historically unprotected speech”, the Court said.  “Defamation is the best known and best theorized example.”
           Defamatory statements have “no constitutional value”, the Court said.  Yet New York Times v. Sullivan (1964) held that a public figure cannot recover for defamation unless the speaker acted “with knowledge” their statement was false or “with reckless disregard of whether it was false or not.”
           “The next question concerns what the type of subjective standard the First Amendment requires”, the Court said. 
           “The law of mens rea offers three basic choices”, the Court said, ranging from purpose, to knowledge, to recklessness.
           “Among those standards, recklessness offers the right path forward”, the Court said.
           “In the threats context, it means that a speaker is aware that others could regard his statements as threatening violence and delivers them anyway”, the Court said.
           The recklessness standard balances the harms true threats cause to individuals and society with protected expression under the First Amendment, the Court said.
           Using a higher standard would provide only “diminishing returns for protected expression” while making it harder for the State to counter true threats, the Court said.
           “Using a recklessness standard also fits with the analysis in our defamation decisions”, the Court said.
           Recklessness offers “enough breathing space for protected speech, without sacrificing too many of the benefits of enforcing laws against true threats”, the Court concluded. 
           The Court reversed Counterman’s conviction and remanded the case, because Colorado had not been required to show “any awareness on his part that the statements could be understood” as threatening. 
           “That is a violation of the First Amendment”, the Court said.
Concurring Opinion
           Justice Sotomayor, joined by Justice Gorsuch, concurred in the outcome, but said the Court should not have decided the “complex question” of whether a mens rea of recklessness is sufficient in all true threats cases.
           She said Counterman’s case could have been decided on narrower grounds, because his conviction was really for stalking, which “can be carried out through speech but need not be” and “requires less First Amendment scrutiny when speech is swept in.”
           She noted the “courts below did not address whether recklessness was sufficient to prosecute true threats and neither of the actual parties have advocated a recklessness standard.”
           She said a mens reas of only recklessness “is inconsistent with precedent, history, and the commitment to even harmful speech that the First Amendment enshrines.”
           “Especially in a climate of intense polarization, it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard”, she said.
           Justices Thomas and Barrett dissented.
           Thomas said New York Times v. Sullivan was a “policy-driven” decision “masquerading as constitutional law.”
           “Instead of simply applying the First Amendment as it was understood at the time of the Founding,” the Court in Sullivan “fashioned its own federal rules” in defamation cases by purporting to balance competing values, Thomas said.
           Barrett said true threats “do not enjoy First Amendment protection” and may be restricted using an “objective standard.”