By: Chinaza Politis
Volume IX – Issue I – Fall 2023
Introduction
“Good morning sweetheart.” “I am going to the store would you like anything?” “[w]as that you in the white Jeep?” “Fuck off permanently.” “Staying in cyber life is going to kill you.” “You’re not being good for human relations. Die.” [1] These are some of the hundreds of Facebook messages Billy Counterman sent to local singer, C.W. between 2014 and 2016. [2] These messages ranged from odd for a stranger to send, to suggestions of surveillance of C.W., to descriptions of harm befalling C.W. [3] C.W. perceived these messages to be “threat[ening her] life” and accordingly made changes in her daily life in order to cope with the ensuing anxiety. [4] In canceling performances and avoiding events she incurred negative financial costs. [5] She then elected to contact the authorities, who arrested Counterman and, using the the Facebook messages at trial, charged him under the following Colorado “stalking” statute: [6]
(1) A person commits stalking if directly, or indirectly through another person, the person knowingly:
…
(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress. [7]
Counterman attempted to argue that the messages were not “true threats”, therefore not the basis for a criminal prosecution, on First Amendment grounds. [8] With the support of People v. Cross, 127 P. 3d 71, 76 (Colo. 2006), the trial court assessed the case with an “objective reasonable person standard”, in which the State had the burden of proving that a reasonable person would consider the messages “threatening” when “considering the totality of the circumstances”. [9] Under this view, the trial court rejected Counterman’s argument and found that his messages “r[o]se to the level of a true threat” and the Colorado Court of Appeals affirmed the decision. [10] The Colorado Supreme Court declined review, the case was sent to the Supreme Court on appeal, and was decided on on June 27, 2023.
I. Amicus Curiae Briefs
i. In Support of Counterman
The American Civil Liberties Union, American Civil Liberties Union of Colorado, Abrams Institute for Freedom of Expression, National Association of Criminal Defense Lawyers, and National Coalition Against Censorship filed an amici curiae brief in support of Counterman to the Supreme Court. [11] They point to Jailed for a Facebook Post: How US Police Target Critics with Arrest and Prosecution, [12] an article published in the Guardian by Sam Levin in May 2017 which outlines the story of Robert Peralta, who had made a Facebook comment on a video of a confrontation between a sheriff’s deputy and an activist, stating “Wow, brother they wanna hit our general. It’s time to strike back. Let’s burn this motherfucker’s house down.” [13] Two months later there was a warrant issued for his arrest and he was jailed for allegedly threatening to kill law enforcement. [14] The brief uses this event and similar cases as reasoning that an objective test on true threats is insufficient because some statements can have both “innocuous and threatening meanings.” [15] They additionally suggest that speech made online, much of which is political or social, is often decontextualized, simplified, and broadcast to an unforeseeably large audience and therefore highlights the need for a subjective standard. [16]
ii. In Support of the People of the State of Colorado
The states Illinois, Alaska, Arizona, Connecticut, Delaware, Hawaii, Iowa, Maine, Massachusetts, Michigan, Mississippi, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, Virginia, and Wyoming and the District of Columbia filed an amici curiae brief in support of the People of the State of Colorado [17] on the grounds that historically, whether to use a subjective or objective standard has been left to the state legislatures to decide. [18] Additionally, the National Family Violence Law Center and the Domestic Violence Legal Empowerment and Appeals Project also filed an amici curiae brief in support of the People of the State of Colorado. [19] They argued that legal precedence suggests that an objective standard is permissible in regulating threatening speech [20] and that a subjective standard would have “far-reaching and deleterious effects” on survivors of domestic violence seeking civil protection orders. [21]
II. Majority Opinion
The First Amendment of the Constitution's Free Speech Clause protects against the government “abridging the freedom of speech”, a broad definition that the courts have taken to meaning that there are some forms of speech that are to be protected and some unprotected, which the government can more firmly regulate. [22] Protected speech is often “social, economic, educational, religious, and cultural” in content. [23] Though there is a strict scrutiny applied to laws that regulate speech, the Supreme Court has outlined particular categories of speech that can be regulated by the government. [24] Obscenity, defamation, fraud, incitement, fighting words, speech integral to criminal conduct, child pornography, and true threats make up a non-exhaustive list of the forms of unprotected speech. [25] These forms of speech are not completely unprotected. Courts continue to grapple with establishing levels of scrutiny to apply to various laws and cases, [26] as speech can often fall into a gray area between what is ideally protected and what is not. Counterman v. Colorado is one such case which seeks to clarify the level of scrutiny applied to speech. It discusses two issues. First, “whether the First Amendment requires proof of a defendant’s subjective mindset in true-threats cases,” and if so, second, “what mens rea standard is sufficient.” [27] Ultimately, in a 7-2 decision given by Justice Kagan, the Supreme Court decided that the First Amendment does require proof of a defendant’s subjective mindset in true-threat cases, but that a mens rea standard of recklessness is sufficient evidence. [28]
Mens rea is the “state of mind statutorily required to convict” an individual of a crime. [29] The Court explains its main reasoning for instituting this new mens rea standard as out of concern that without a subjective standard, speech risks being chilled. [30] It agrees that Counterman’s speech was a true threat, citing the reasoning from Watts v. United States, Elonis v. United States, and Virginia v. Black as justification for using a more objective standard in assessing whether speech was truly threatening or not. [31] Though true threats are a “historically unprotected” category of speech, the Court also cites precedence in which the Court has protected some forms of unprotected speech through adopting a “subjective mental-state element.” [32] Though an objective standard could be used to determine if the speech is threatening, the Court may still institute a subjective test in assessing liability. [33] The Court reasons that, generally, unprotected forms of speech are not given protections because the speech is of “such slight social value … that any benefit that may be derived from them is clearly outweighed by the social interest” of regulating such speech. [34] Though, there are some forms of unprotected speech which might have social values that outweigh the interest of regulating them. The Court recognizes that certain forms of unprotected speech have subjective requirements in order to avoid encouraging “self-censorship” or a “chilling effect” from individuals who would avoid saying protected speech out of fear that others may interpret it wrong and they might incur some form of legal punishment. [35] A subjective test reduces the fear a protected speaker might have of delivering speech that could objectively be viewed as unprotected, and allows for a “breathing room” for protected speech. [36] Thus, the Court concludes that a subjective mindset test should be required in true threat cases.
In answering the question of which mens rea standard is sufficient for assessing true threat cases, the Court assesses three options: purpose, knowledge, or recklessness. [37] Purpose, asking whether a person “consciously desires” a result, and knowledge, asking whether they are aware a “result is practically certain to follow”, are closely related and similarly difficult to prove. [38] Recklessness, as described in Voisine v. United States, questions if a person “consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another”, notably not assessing the speaker’s awareness of the possible harm inflicted, and therefore easier to prove than purpose or knowledge. [39] When applied to the true threats context specifically, as extracted from Elonis v. United States, it assesses if the speaker has awareness that others might understand the statements to be “threatening violence” and still “delivers them anyway.” [40] The Court determined a recklessness standard to be most fitting for true threat cases as it strikes the proper balance between offering “‘breathing space’ for protected speech” and the government’s interest in protecting against true threats. [41]
To come to the conclusion the Court came to, they compared true threat cases to other categories of unprotected speech and the precedence for assessing liability used in related cases. The categories which received the most attention were obscenity, incitement, and defamation. Obscenity is similar to true threats, in that the negative effects are inflicted regardless of the “purveyor’s mental state”, but precedence leads to the conclusion that the consequences depend on the speaker’s awareness of “the character and nature” of the speech in the interest of avoiding the chilling of speech. [42] Incitement also bears similarities to true threats, in that it can inflict harm even when the speaker does not intend to do so, and requires a show of intention for disorder in assessing liability in order to avoid deterring “mere advocacy.” [43] They determined the incitement standard to be too high for true threat cases, in recognizing that protected incitement speech is often a form of “political advocacy”, and at the core of the First Amendment’s protections, whereas protected threatening speech is less “central to the theory of the First Amendment” and in need of a less “distinct standard.” [44] Though the Court has determined that untrue defamatory statements have “no constitutional value”, out of the interest of preventing self-censorship, the Court requires a show of knowledge or recklessness to the untruthfulness of a statement before a public figure can recover injury for the defamation. [45] The courts determined recklessness should similarly be used for true threats as it reasoned that true defamatory statements about public figures are a more “central” concern to the First Amendment than “borderline” true threat statements, and therefore a higher standard of subjective assessment is not needed for true threat cases. [46]
III. Dissent
Justice Barrett, joined by Justice Thomas, dissented from the majority, stating that the Court had granted true threats “preferential treatment” in comparison to other forms of unprotected speech and that its reasoning to support this was flawed due to misreading cited cases and neglecting other relevant cases. [47]
Barrett goes on to discuss various forms of unprotected speech which she states use an objective standard for assessment, those being: fighting words, misleading commercial speech, and obscenity. She first points towards fighting words, unprotected speech which is assessed solely through an objective “ordinary citizen” test, as according to Chaplinsky v. New Hampshire, Cantwell v. Connecticut, Cohen v. California, and Texas v. Johnson. [48] Barrett then looks at “false, deceptive, or misleading commercial speech”, which uses a test of “objective falsity” in its limitation, not assessing the speaker’s intent or knowledge of the deceptiveness of said speech. [49] Barrett disagrees with the majority’s interpretation of obscenity, which she claims uses an objective “average person” test to determine if the statement is obscene. [50] She states that the past obscenity cases the Court interprets as creating a test of the speaker’s “mindset” were actually cases that focused on a rejection of a “strict liability standard” rather than a clear suggestion of a subjective standard. [51] Instead, she argues that requiring knowledge of the content depicted in speech is different from requiring knowledge of “how the average person would react to it” and that the cases Hamling v. United States and Rosen v. United States rejected the latter requirement in obscenity cases. [52]
Barrett then discusses the forms of unprotected speech which do not solely use an objective standard, incitement and defamation, and how they differ from true threat cases. While Barrett agrees with the interpretation that incitement requires a show of intent, she proposes that the intention standard helps “draw the line” between unprotected incitement and “political rhetoric lying at the core of the First Amendment”, and is not applicable to “targeted threats” as they are not subject to an equivalent dichotomy. [53] Barrett states that the majority’s opinion focuses most on defamation, but that their interpretation depends on “a single, cherry-picked strand of the doctrine” from New York Times Co. v. Sullivan. [54] The case requires that when suing for defamation over false statements made toward a public official or figure, the plaintiff must also prove the defendant had knowledge of the falseness or was reckless, with the goal that this ruling would avoid limiting “the variety of public debate.” [55] However, Gertz v. Robert Welch, Inc found that an objective test is all that is necessary for defamation damages for a “private person”, as public figures require less protection from the state since they have more ways to “counteract false statements” than private persons. [56] Barrett reasons that the heightened standard in Sullivan should not be applied to either public or private persons in true threat cases, as not even a public figure’s platform to counteract statements immediately protects them from “serious threats of physical violence.” [57] Furthermore, with the new mens rea of recklessness in true threat cases, private persons have more protection from defamation than they do from true threats, though most would “presumably value” otherwise. [58]
Barrett provides other legal reasoning to support her dissent in response to the majority’s stated concern in protecting against chilling speech. Barrett states that an objective test is sufficient in protecting against chilling speech because it is specific in definition, as it requires the speech express intention to “commit an act of unlawful violence” to a particular “individual or group”, and assesses how a reasonable listener would consider the “entire factual context”, including factors such as “the speaker’s tone” and the “broader exchange.” [59] Assessing these factors distinguishes which speech is protected and which is not. [60] Furthermore, Barrett states that “true threats carry little value and improse great costs”, and that any “social value” or “potential of injury” arising from true threats are not changed by a speaker’s subjective intent. [61] Therefore, true threats are unprotected for objective, not subjective, reasons and this suggests that an objective test should be used for such cases. [62] Barrett further argues that Counterman and the Court lack historical precedence and constitutional support that a subjective test or recklessness standard should be the floor when assessing true threat cases. [63] When balancing the protections against chilling speech and the interest of the State in protecting against the harms arising from true threats, Barrett argues that asking which mens rea standard is “just right” is a “Goldilocks judgment” and that the option should be left to the legislature to enact laws that “exceed the floor” to best calibrate a balance between the two competing factors. [64]
Barrett reminds readers that the impacts of this decision will affect both civil consequences and criminal liability and impact states abilities to protect its citizens from true threats. [65] Barrett goes on to cite a variety of cases in which victims of threatening statements sought restraining orders or “employers and school administrators” took disciplinary action in response to truly threatening statements and reminds that these outcomes might be different with the new mens rea. [66] She clarifies that with this new standard “delusional”, “devious”, and “lucky” speakers of true threats may be able to dodge liability for unprotected speech. [67]
IV. Conclusion
This case is complex, as the First Amendment is generally invoked to protect forms of speech that are more obviously determined to be deserving of protection than the statements made by Counterman. Though there is interest in protecting an individual’s right to speak freely without concern that their words may be interpreted as a threat and punished, this ideal does not exist in a vacuum. According to a 2019 report by the Bureau of Justice Statistics, roughly 1.3% of Americans above the age of 16 were “victims of stalking in 2019”, women were “stalked more than twice as often” as men, and roughly 67% of victims were “fearful of being killed or physically harmed.” [68] This case will affect how law enforcement will be able to address stalking, presumably raising the bar for liability and, as acknowledged by both the majority and dissent, is likely to lead to individuals who make true threats to be allowed to slip through the cracks.
Endnotes
[1] Counterman v. Colorado, majority at 2 (Supreme Court 2023) accessed via https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf
[2] Ibid at 1.
[3] Ibid at 1-2.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] “Colo. Rev. Stat. § 18-3-602,” Casetext, accessed November 21, 2023, https://casetext.com/statute/colorado-revised-statutes/title-18-criminal-code/article-3-offenses-against-the-person/part-6-stalking/section-18-3-602-stalking-penalty-definitions-vonnies-law.
[8] Counterman v. Colorado, 3 [majority] (Supreme Court 2023) accessed via https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf
[9] Ibid.
[10] Ibid.
[11] Brief Of Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Colorado, Abrams Institute For Freedom of Expression, National Association of Criminal Defense Lawyers, and National Coalition Against Censorship in Support of Petitioner, March 1, 2023. https://www.supremecourt.gov/DocketPDF/22/22-138/256292/20230306123505543_22-138%20Counterman%20v.%20Colorado%20Amicus%20Brief.pdf, 1.
[12] Brief of Amici Curiae American Civil Liberties Union, 7.
[13] Sam Levin, “Jailed for a Facebook Post: How Us Police Target Critics with Arrest and Prosecution,” The Guardian, May 18, 2017, https://www.theguardian.com/us-news/2017/may/18/facebook-comments-arrest-prosecution.
[14] Ibid.
[15] Brief of Amici Curiae American Civil Liberties Union, et al. 6-7.
[16] Ibid at 9-10.
[17] Brief of Illinois, Alaska, Arizona, Connecticut, Delaware, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Mississippi, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, Virginia, and Wyoming as Amici Curiae in Support of Respondent, March 31, 2023. https://www.supremecourt.gov/DocketPDF/22/22-138/262424/20230331115445526_Counterman%20v.%20Colorado%20Multistate%20Amicus%20Brief%20-%20Final%20UPDATED%20PDFA.pdf, 1.
[18] Brief of Illinois, et al. 1-3,
[19] Brief Of The National Family Violence Law Center & The Domestic Violence Legal Empowerment And Appeals Project As Amici Curiae In Support Of The Respondent, March 31, 2023. https://www.supremecourt.gov/DocketPDF/22/22-138/262496/20230331144740799_Brief%20of%20Amici%20Curiae.pdf, 1.
[20] Brief of The National Family Violence Law Center, et al. 3.
[21] Brief of The National Family Violence Law Center, et al. 3-4
[22] Victoria L Killion, “The First Amendment: Categories of Speech,” Congressional Research Service, January 16, 2019, https://crsreports.congress.gov/product/pdf/IF/IF11072, 1.
[23] Killion, “The First Amendment: Categories of Speech,” Congressional Research Service, 1.
[24] Ibid at 1-2.
[25] Ibid at 2.
[26] Ibid at 1-2.
[27] Counterman v. Colorado, majority at 3-4 (Supreme Court 2023) accessed via https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf
[28] Ibid at 1.
[29] “Mens Rea,” Legal Information Institute, July 2023, https://www.law.cornell.edu/wex/mens_rea.
[30] Counterman v. Colorado, majority at 4 [majority] (Supreme Court 2023) accessed via https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf.
[31] Ibid at 6.
[32] Ibid at 4.
[33] Ibid at 6.
[34] Ibid at 5.
[35] Counterman v. Colorado, majority at 6-7 (Supreme Court 2023) accessed via https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf
[36] Ibid at 7.
[37] Ibid at 10-11.
[38] Ibid.
[39] Ibid.
[40] Ibid.
[41] Ibid at 14.
[42] Ibid at 8-9.
[43] Ibid at 8.
[44] Ibid at 13.
[45] Ibid at 7-8.
[46] Ibid at 12.
[47] Counterman v. Colorado, dissent at 1-3 (Supreme Court 2023) accessed via https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf.
[48] Ibid at 3-4.
[49] Ibid at 4.
[50] Ibid at 4-5.
[51] Ibid at 5.
[52] Ibid at 5-6.
[53] Ibid at 7.
[54] Ibid at 6.
[55] Ibid at 6.
[56] Ibid at 6.
[57] Ibid at 7.
[58] Counterman v. Colorado, dissent at 7 [Barrett’s dissent] (Supreme Court 2023) accessed via https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf
[59] Ibid at 8.
[60] Ibid at 10.
[61] Ibid at 2.
[62] Ibid at 3.
[63] Ibid at 12.
[64] Ibid at 11-13.
[65] Ibid at 13.
[66] Ibid at 13-15.
[67] Ibid at 15.
[68] Rachel E Morgan and Jennifer L Truman, “Stalking Victimization, 2019,” Bureau of Justice Statistics, February 10, 2022, https://bjs.ojp.gov/library/publications/stalking-victimization-2019.