Counterman v. Colorado

Last updated

Counterman v. Colorado
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued April 19, 2023
Decided June 27, 2023
Full case nameBilly Raymond Counterman, Petitioner v. Colorado
Docket no. 22-138
Citations600 U.S. 66 ( more )
Argument Oral argument
Opinion announcement Opinion announcement
Questions presented
Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence. [1]
Holding
The State must prove in true-threats cases that the defendant had some subjective understanding of his statements' threatening nature, but the First Amendment requires no more demanding a showing than recklessness.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas  · Samuel Alito
Sonia Sotomayor  · Elena Kagan
Neil Gorsuch  · Brett Kavanaugh
Amy Coney Barrett  · Ketanji Brown Jackson
Case opinions
MajorityKagan, joined by Roberts, Alito, Kavanaugh, Jackson
ConcurrenceSotomayor (in part and in judgment), joined by Gorsuch (Parts I, II, III-A and III-B)
DissentThomas
DissentBarrett, joined by Thomas
Laws applied
U.S. Const. amend. I

Counterman v. Colorado, 600 U.S. 66 (2023), is a case of the Supreme Court of the United States concerning the line between true threats of violence punishable as crimes and free speech protected by the First Amendment. The states and lower courts were divided over how to define the line. By a 7-2 majority, the court decided that statements are not free speech if the defendant recklessly disregarded a substantial risk that their statements would be viewed as threatening violence.

Contents

Beginning in 2010, Billy Counterman sent thousands of messages to singer-songwriter Coles Whalen that foreboded her death and followed her activities. Counterman was convicted of stalking in Colorado, with his conviction left intact by the Colorado Court of Appeals and Colorado Supreme Court. Under Colorado law, statements are not free speech if a reasonable person would view the statements as threatening, with no need to prove that the speaker had subjective intent to threaten. Writing for the majority, Justice Elena Kagan wrote that there must be some subjective understanding of the threatening nature of the statements, but that a mental state of recklessness is sufficient, with no need for any more demanding form of subjective intent. Although the decision left Counterman vulnerable to conviction on retrial, some criticized it for declaring that stalking was protected by the First Amendment. [2]

Background

State of the law

Although the First Amendment protects free speech, there are exceptions for incitement, defamation, obscenity, fighting words, and true threats. [3] Before the Supreme Court ruling, there were conflicting standards in different states as well as in different federal courts of appeal over how to determine whether a threatening statement is not protected by the First Amendment. Some standards were based on whether a "reasonable person" would interpret the statement as threatening, known as an "objective" standard. Others were "subjective" standards based on the speaker's recklessness as to their statement's threatening nature, knowledge that their statement will be seen as a threat, or intent that their statement be a threat. [4] [1] Colorado uses the reasonable-person standard. [5]

Lower court history

Beginning in 2010, Billy Counterman sent thousands of Facebook messages to singer-songwriter Coles Whalen over a six-year period. [6] "You're not being good for human relations. Die. Don't need you," Counterman wrote. "Was that you in the white Jeep?" She blocked him several times, but he created new accounts and continued sending messages. [7] "Staying in cyber life is going to kill you," Counterman wrote. "Seems like I'm being talked about more than I'm being talked to. This isn't healthy." [8] Counterman was arrested in 2016 and prosecuted for stalking [Note 1] under Colorado law [Note 2] based only on the text messages he sent. [9] Counterman was convicted and sentenced to four-and-a-half years of prison. [10] [6] Colorado did not present any evidence of physical stalking acts, such as following, at the trial; the lack of a proven physical act exposed the case to First Amendment review under the true threats doctrine because the proven criminal act involved only speech. [9] The Colorado Court of Appeals affirmed his conviction in 2021 under the standard that a person could "reasonably perceive" that the threats were serious. [5] [8] The Colorado Supreme Court denied review. [11]

Supreme Court

On January 13, 2023, the Supreme Court granted his petition for a writ of certiorari. [12] The Biden administration submitted an amicus brief, warning that "Threats of violence against public officials in particular have proliferated in recent years, including threats against Members of Congress, judges, local officials, and election workers". [7]

Oral arguments

Oral arguments were held on April 19, 2023. Justice Clarence Thomas said, "We are more hypersensitive about different things now, and people can feel threatened in different ways." [13] Justice Neil Gorsuch said, "We live in a world in which people are sensitive, and maybe increasingly sensitive. As a professor, you might have issued a trigger warning from time to time when you had to discuss a bit of history that's difficult or a case that's difficult. What do we do in a world in which reasonable people may deem things harmful, hurtful, threatening? And we're going to hold people liable willy-nilly for that?" [14] Justice Amy Coney Barrett asked what if a professor gives a lecture "about just how vicious it was to be in a Jim Crow South and puts up behind them on a screen a picture of a burning cross and reads aloud some threats of lynching that were made at the time" and Black students interpret the lecture as a physical threat "because they don't understand it"? [14] Chief Justice John Roberts made light of Counterman's messages, prompting laughter from other justices and the audience. [14] Justice Elena Kagan said that from Whalen's perspective, Counterman's actions "can be objectively terrifying". [13]

Opinion of the court

The case was decided on June 27, 2023. Justice Elena Kagan delivered the opinion of the court. In a 7–2 decision, the court ruled that the Court of Appeals erred in interpreting that the burden on the government to establish the statement being a "true threat" is to prove that a reasonable person would understand his statements as threats. The majority stated that for "true threat" cases, the government must prove that the speaker was reckless in their comments, but it does not need to prove that the speaker intended harm with their comments. [8] [15] "The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence," Kagan wrote. "The State need not prove any more demanding form of subjective intent to threaten another." [16] She explained that the recklessness standard involves "insufficient concern with risk, rather than awareness of impending harm". [17]

The court vacated the judgment of the Colorado Court of Appeals and remanded the case back down, which means the lower court will reconsider the case and could still convict Counterman if he's found guilty of stalking under the new standard set forth by the court. [15]

Concurrence

Justice Sonia Sotomayor concurred in the judgement but wrote, "There is simply no need to reach out in this stalking case to determine whether anything more than recklessness is needed for punishing true threats generally." Justice Gorsuch agreed to her concurrence in part. [16]

Dissent

Justice Amy Coney Barrett dissented, writing that the decision "unjustifiably grants true threats preferential treatment" [8] and that, because the majority decided it as a First Amendment matter, the standard would apply to civil cases as well as criminal. Justice Thomas joined her dissent and separately wrote to address the majority's "surprising and misplaced reliance" on New York Times Co. v. Sullivan , the landmark 1964 Supreme Court case that raised the requirement for public figures to claim libel. [18]

Reaction

Law specialists said the messages would probably still lead to reconviction under the recklessness doctrine. [19] Rhonda Saunders, a prosecutor specializing in stalking law, said many states already had the recklessness doctrine in their laws but added, "I'm afraid police agencies and prosecutors are going to use [the Supreme Court decision] as an excuse not to do the job they are supposed to do." [19] Annie Seifullah, a civil litigator and cyberbullying survivor, said, "As the dust settles, I believe we'll find that a lot of egregious behavior will still fall under this new standard. But some won't...We need something more tailored to the actual harm here." [19]

Law professor Mary Anne Franks, whose focus is cyberbullying, wrote: "The court ignores the reality that many stalkers fervently believe that their actions are or should be welcomed by their victims; indeed, the court's holding means that the more delusional the stalker, the more the stalking is protected." [19] She wrote that "the Supreme Court has declared stalking to be protected by the First Amendment" and that the decision "elevates stalkers into free speech heroes". [2] Victims' rights advocate Lenora Claire said, "My phone is blowing up with victims who are absolutely terrified. If you even get as far as prosecution, you've already been through the gauntlet, navigating the restraining order process, convincing law enforcement to take you seriously." [19]

Brian Hauss, senior staff attorney with the American Civil Liberties Union's Speech, Privacy, & Technology Project said, "We're glad the Supreme Court affirmed today 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." [8]

See also

Notes

  1. ↑ The law's definition included repeatedly sending messages that caused serious emotional distress.
  2. ↑ Section 18-3-602(1)(c), C.R.S. 2020

Related Research Articles

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), is a case of the United States Supreme Court that unanimously struck down St. Paul's Bias-Motivated Crime Ordinance and reversed the conviction of a teenager, referred to in court documents only as R.A.V., for burning a cross on the lawn of an African-American family since the ordinance was held to violate the First Amendment's protection of freedom of speech. The Court reasoned that an ordinance like this constitutes "viewpoint discrimination" which may have the effect of driving certain ideas from the marketplace of ideas.

Brandenburg v. Ohio, 395 U.S. 444 (1969), is a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". Specifically, the Court struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California (1927) was explicitly overruled, and Schenck v. United States (1919), Abrams v. United States (1919), Gitlow v. New York (1925), and Dennis v. United States (1951) were overturned.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the freedom of speech protections in the First Amendment to the U.S. Constitution restrict the ability of public officials to sue for defamation. The decision held that if a plaintiff in a defamation lawsuit is a public official or candidate for public office, then not only must they prove the normal elements of defamation—publication of a false defamatory statement to a third party—they must also prove that the statement was made with "actual malice", meaning the defendant either knew the statement was false or recklessly disregarded whether it might be false. New York Times Co. v. Sullivan is frequently ranked as one of the greatest Supreme Court decisions of the modern era.

Gitlow v. New York, 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment's provisions protecting freedom of speech and freedom of the press to apply to the governments of U.S. states. Along with Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), it was one of the first major cases involving the incorporation of the Bill of Rights. It was also one of a series of Supreme Court cases that defined the scope of the First Amendment's protection of free speech and established the standard to which a state or the federal government would be held when it criminalized speech or writing.

Katz v. United States, 389 U.S. 347 (1967), was a landmark decision of the U.S. Supreme Court in which the Court redefined what constitutes a "search" or "seizure" with regard to the Fourth Amendment to the U.S. Constitution. The ruling expanded the Fourth Amendment's protections from an individual's "persons, houses, papers, and effects," as specified in the Constitution's text, to include any areas where a person has a "reasonable expectation of privacy." The reasonable expectation of privacy standard, now known as the Katz test, was formulated in a concurring opinion by Justice John Marshall Harlan II.

Virginia v. Black, 538 U.S. 343 (2003), was a landmark decision of the Supreme Court of the United States in which the Court held, 5–4, that any state statute banning cross burning on the basis that it constitutes prima facie evidence of intent to intimidate is a violation of the First Amendment to the Constitution. Such a provision, the Court argued, blurs the distinction between proscribable "threats of intimidation" and the Ku Klux Klan's protected "messages of shared ideology". In the case, three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. However, cross-burning can be a criminal offense if the intent to intimidate is proven. It was argued by former Solicitor General of Virginia, William Hurd and Rodney A. Smolla.

Morse v. Frederick, 551 U.S. 393 (2007), is a United States Supreme Court case where the Court held, 5–4, that the First Amendment does not prevent educators from prohibiting or punishing student speech that is reasonably viewed as promoting illegal drug use.

Threatening the president of the United States is a federal felony under United States Code Title 18, Section 871. It consists of knowingly and willfully mailing or otherwise making "any threat to take the life of, to kidnap, or to inflict great bodily harm upon the president of the United States". The law also includes presidential candidates, vice presidents, and former presidents. The Secret Service investigates suspected violations of this law and monitors those who have a history of threatening the president. Threatening the president is considered a political offense. Immigrants who commit this crime can be deported.

A true threat is a threatening communication that can be prosecuted under the law. It is distinct from a threat that is made in jest, or a threatening remark that no reasonable person would perceive to be a genuine threat, intended to be acted upon. The U.S. Supreme Court has held that true threats are not protected under the U.S. Constitution based on three justifications: preventing fear, preventing the disruption that follows from that fear, and diminishing the likelihood that the threatened violence will occur. There is some concern that even satirical speech could be regarded as a "true threat" due to concern over terrorism.

<span class="mw-page-title-main">Coles Whalen</span> American singer-songwriter

Coles Whalen is an Americana, pop and country singer-songwriter based in Denver. She has toured extensively through the United States and Canada and has released six independent records.

Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), is a United States Supreme Court case with the National Park Service's regulation which specifically prohibited sleeping in Lafayette Park and the National Mall at issue. The Community for Creative Non-Violence (CCNV) group had planned to hold a demonstration on the National Mall and Lafayette Park where they would erect tent cities to raise awareness of the situation of the homeless. The group obtained the correct permits for a seven-day demonstration starting on the first day of winter. The Park Service however denied the request that participants be able to sleep in the tents. The CCNV challenged this regulation on the basis that it violated their First Amendment right.

United States v. Alvarez, 567 U.S. 709 (2012), is a landmark decision in which the Supreme Court of the United States ruled that the Stolen Valor Act of 2005 was unconstitutional. The Stolen Valor Act of 2005 was a federal law that criminalized false statements about having a military medal. It had been passed by Congress as an effort to stem instances where people falsely claimed to have earned the medal in an attempt to protect the valor of legitimate recipients. A 6–3 majority of the Supreme Court agreed that the law was unconstitutional and violated the free speech protections under the First Amendment. Despite reaffirming the opinion that was previously issued by the Ninth Circuit, it could not agree on a single rationale. Four justices concluded that a statement's falsity is not enough, by itself, to exclude speech from First Amendment protection. Another two justices concluded that while false statements were entitled to some protection, the Stolen Valor Act of 2005 was invalid because it could have achieved its objectives in less restrictive ways.

<span class="mw-page-title-main">United States free speech exceptions</span> Categories of free speech not protected by the First Amendment

In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.

Elonis v. United States, 575 U.S. 723 (2015), was a United States Supreme Court case concerning whether conviction of threatening another person over interstate lines requires proof of subjective intent to threaten or whether it is enough to show that a "reasonable person" would regard the statement as threatening. In controversy were the purported threats of violent rap lyrics written by Anthony Douglas Elonis and posted to Facebook under a pseudonym. The ACLU filed an amicus brief in support of the petitioner. It was the first time the Court has heard a case considering true threats and the limits of speech on social media.

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018), was a case in the Supreme Court of the United States that addressed whether owners of public accommodations can refuse certain services based on the First Amendment claims of free speech and free exercise of religion, and therefore be granted an exemption from laws ensuring non-discrimination in public accommodations—in particular, by refusing to provide creative services, such as making a custom wedding cake for the marriage of a gay couple, on the basis of the owner's religious beliefs.

Reed v. Town of Gilbert, 576 U.S. 155 (2015), is a case in which the United States Supreme Court clarified when municipalities may impose content-based restrictions on signage. The case also clarified the level of constitutional scrutiny that should be applied to content-based restrictions on speech. In 2005, Gilbert, Arizona adopted a municipal sign ordinance that regulated the manner in which signs could be displayed in public areas. The ordinance imposed stricter limitations on signs advertising religious services than signs that displayed "political" or "ideological" messages. When the town's Sign Code compliance manager cited a local church for violating the ordinance, the church filed a lawsuit in which they argued the town's sign regulations violated its First Amendment right to the freedom of speech.

Kingsley v. Hendrickson, 576 U.S. 389 (2015), is a United States Supreme Court case in which the Court held in a 5–4 decision that a pretrial detainee must prove only that force used by police is excessive according to an objective standard, not that a police officer was subjectively aware that the force used was unreasonable.

Packingham v. North Carolina, 582 U.S. 98 (2017), is a case in which the Supreme Court of the United States held that a North Carolina statute that prohibited registered sex offenders from using social media websites was unconstitutional because it violated the First Amendment to the U.S. Constitution, which protects freedom of speech.

Barr v. American Assn. of Political Consultants, Inc., 591 U.S. ___ (2020), was a United States Supreme Court case involving the use of robocalls made to cell phones, a practice that had been banned by the Telephone Consumer Protection Act of 1991 (TCPA), but which exemptions had been made by a 2015 amendment for government debt collection. The case was brought by the American Association of Political Consultants, an industry trade group, and others that desired to use robocalls to make political ads, challenging the exemption unconstitutionally favored debt collection speech over political speech. The Supreme Court, in a complex plurality decision, ruled on July 6, 2020, that the 2015 amendment to the TCPA did unconstitutionally favor debt collection speech over political speech and violated the First Amendment.

303 Creative LLC v. Elenis, 600 U.S. 570 (2023), is a United States Supreme Court decision that dealt with the intersection of anti-discrimination law in public accommodations with the Free Speech Clause of the First Amendment to the United States Constitution. In a 6–3 decision, the Court found for a website designer, ruling that the state of Colorado cannot compel the designer to create work that violates her values. The case follows from Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018), which had dealt with similar conflict between free speech rights and Colorado's anti-discrimination laws but had been decided on narrower grounds.

References

  1. 1 2 "PETITION FOR A WRIT OF CERTIORARI" (PDF). supremecourt.gov. Retrieved July 7, 2023.
  2. 1 2 Mary Anne Franks (July 6, 2023). "The Supreme Court Just Legalized Stalking". slate.com. Retrieved July 6, 2023.
  3. ↑ Liptak, Adam (February 20, 2023). "When Do Creepy Facebook Messages Cross a Constitutional Line". The New York Times. Retrieved July 8, 2023. There are exceptions for libel, incitement, obscenity and fighting words, and one for "true threats," which is at issue in Mr. Counterman's case.
  4. ↑ Sherry, Allison (February 10, 2023). "The latest free speech battle from Colorado going before the US Supreme Court will test the state's stalking laws". Colorado Public Radio. Retrieved July 8, 2023.
  5. 1 2 Karlik, Michael (July 23, 2021). "Appeals court finds man's online threats to Denver musician not protected by First Amendment". Colorado Politics. Retrieved July 8, 2023.
  6. 1 2 Kyle Wagner (January 25, 2023). "U.S. Supreme Court Will Hear Colorado Social Media Stalking Case Involving Musician". Westword . Retrieved March 30, 2023.
  7. 1 2 Gresko, Jessica (June 27, 2023). "The Supreme Court makes it more difficult to convict someone of making a threat". AP News. Retrieved July 7, 2023.
  8. 1 2 3 4 5 Fritze, John (June 27, 2023). "Is that a threat? Supreme Court backs man who sent 'creepy' Facebook messages". USA Today. Retrieved June 27, 2023.
  9. 1 2 Counterman, slip op. at 1 n.1-2.
  10. ↑ Harris, Kyle (October 25, 2017). "How Singer Coles Whalen Stopped a Stalker in Denver's Music Scene". Westworld. Retrieved July 8, 2023.
  11. ↑ "Supreme Court Report: Counterman v. Colorado, 22-138". National Association of Attorneys General. January 30, 2023. Retrieved April 17, 2023.
  12. ↑ "Docket for 22-138". www.supremecourt.gov. Retrieved April 17, 2023.
  13. 1 2 Hurley, Lawrence (April 19, 2023). "Supreme Court weighs 'true threats' in online stalking case". NBC News. Retrieved July 7, 2023.
  14. 1 2 3 Franks, Mary Anne (April 21, 2023). "Chief Justice John Roberts' Mockery of Stalking Victims Points to a Deeper Problem". Slate. Retrieved July 8, 2023.
  15. 1 2 "Supreme Court Overturns Stalker's Conviction In First Amendment Case Over 'True Threats'". Forbes. June 27, 2023. Retrieved June 28, 2023.
  16. 1 2 Schonfeld, Zach (June 27, 2023). "Supreme Court vacates Colorado man's stalking conviction in 'true threat' First Amendment decision". The Hill. Retrieved July 7, 2023.
  17. ↑ Nolan Brown, Elizabeth (June 28, 2023). "Supreme Court Refuses To Expand the 'True Threats' Exception for Free Speech". Reason. Retrieved July 7, 2023.
  18. ↑ Cole, Devan (June 27, 2023). "Justice Thomas renews attacks on landmark First Amendment decision in fiery dissent". CNN. Retrieved July 7, 2023.
  19. 1 2 3 4 5 Gumbel, Andrew (June 28, 2023). "'Victims are terrified': supreme court ruling on stalking cases sparks alarm". The Guardian. Retrieved July 7, 2023.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.