The U.S. Supreme Court voted 7-2 to declare that the First Amendment does not protect statements made by a defendant if they “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” The decision, which sets a new standard for assessing threatening speech, led to the overturning of the threats conviction of defendant Billy Counterman, who had sent numerous Facebook messages to a local singer and musician identified as C.W.
Counterman persistently targeted C.W. by creating multiple Facebook accounts, despite the singer’s attempts to block him. The case raised the question of whether Counterman could be convicted for statements that he did not subjectively intend as threats. The state of Colorado argued that subjective intent was not necessary as long as a reasonable person would view the Facebook messages as threatening.
Justice Elena Kagan, writing the majority opinion, concluded that the state must demonstrate the defendant’s recklessness without the need to prove a more demanding form of subjective intent to threaten another. Kagan drew support for her conclusion from the influential 1964 Supreme Court case New York Times v. Sullivan, which established that public figures cannot sue for defamation unless they can prove “actual malice” by the speaker, meaning false statements made with reckless disregard for the truth.
However, Justice Clarence Thomas dissented, expressing surprise and disagreement with the majority’s reliance on New York Times v. Sullivan. Thomas has previously advocated for the Supreme Court to reconsider the precedent. Kagan’s analysis also addressed the issue of a defendant’s mindset in obscenity and incitement prosecutions.
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Kagan emphasized that, like threats, incitement relies on specific words used in particular contexts, with potential harm even if the speaker fails to understand the nature and consequences of their expression. Nevertheless, the First Amendment prevents civil or criminal punishment unless the speaker’s words were intended, not just likely, to produce imminent disorder.
Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson fully joined Kagan’s majority opinion. Justices Sonia Sotomayor and Neil Gorsuch concurred with the judgment, although Gorsuch did not join a section discussing New York Times v. Sullivan. Gorsuch has previously called for reconsidering the precedent.
Counterman was charged with violating a Colorado statute that prohibits threatening speech causing serious emotional distress to a reasonable person, which did indeed cause distress to the victim. Kagan described Counterman’s messages, which ranged from seemingly harmless and prosaic statements to ones expressing anger at C.W. and envisioning harm befalling her. The messages caused significant fear and disruption in C.W.’s life, impacting her sleep, daily activities, and performances.
The state relied solely on the Facebook messages as evidence during the trial. The trial court ruled that it was sufficient to demonstrate that a reasonable person would view the messages as threatening without requiring prosecutors to establish Counterman’s subjective intent. Based on this standard, Counterman was convicted in a jury trial.
Counterman argued that an intent requirement is necessary to protect speech covered by the First Amendment and prevent chilling effects. Kagan acknowledged the need to protect historically unprotected speech by incorporating a subjective mental state element. Thus, the court held that in cases involving true threats, the state must prove that the defendant had some understanding of the threatening nature of their statements. In this context, the court determined that a recklessness standard is sufficient for First Amendment purposes.
Since Counterman’s conviction was judged solely on an objective standard, without considering his awareness, the Supreme Court found his conviction to violate the First Amendment and consequently vacated it.
Justice Amy Coney Barrett joined Justice Thomas in dissenting from the majority opinion. Barrett argued that the majority unjustifiably granted preferential treatment to true threats by requiring speakers to recklessly disregard the threatening nature of their speech in order to lose constitutional protection. She further clarified that the New York Times v. Sullivan standard only applies to defamation cases involving public figures, while private individuals need to satisfy an objective standard to recover actual damages for defamation.
In this case, the Supreme Court’s ruling establishes a new standard for evaluating threatening speech and highlights the ongoing debates surrounding subjective intent, free speech, and legal precedents.
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