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True Threats:  When Does Free Speech Become a Crime?

Posted by Sean A. Black | Jun 27, 2023 | 0 Comments

On Tuesday, June 27, 2023, the United States Supreme Court made it harder for the government to prosecute a person for threats.  The decision is Counterman v. Colorado, and it examines the intersection of the First Amendment with criminal laws.

Counterman sent hundreds of Facebook messages to a local singer/musician referred to as C. W.  Some of the messages envisaged violent harm befalling her. She attempted to block him, but he would set up a new profile and keep contacting him.  This continued from 2014 through sometime in 2016. When she reported the continued harassment to law enforcement, they brought charges against him for a Colorado offense that required a showing of repeated communications in a manner to cause a reasonable person to suffer emotional distress and does cause the person to suffer emotional distress.  Georgia has a similar law, OCGA §  16-11-39.1.  There is no dispute that C. W. suffered emotional distress and was terrified for her life.

Counterman defended that his communications were within the range of protected speech under the First Amendment.

The general rule of the First Amendment is that a person can say what they choose with some very limited exceptions.  One of the exceptions to restrictions on content is “true threats.”  A true threat is not protected by the First Amendment and can form the basis of a criminal prosecution.

A true threat is a serious expression conveying that the speaker means to commit an act of unlawful violence. The existence of the threat depends not on the speaker's mental state but on what the message conveys to the receiver.  But, the speaker's subjective mental state may shield some true threats from criminal liability.  The requirement of proof of the speaker's culpable mental state is necessary to protect against the chilling or deterring of free speech.  The Court attempts to explain it this way. The fear of being prosecuted may cause a speaker to remain silent rather than make a statement that may be incorrectly treated as a true threat which is not a true threat. 

So what is the level of criminal intent that is required?  The Court finds that recklessness is the lowest level of intent (mens rea) that will suffice.  That means the state would have to prove that the person made the statement with a conscious disregard for a substantial and unjustifiable risk that his conduct will cause harm to another.  It is similar to other Court decisions relating to defamation.

Because Colorado based its prosecution and conviction solely upon the objective evaluation of the statements and did not consider Counterman's subjective mental state, the Supreme Court reversed and remanded the case.  This means that they eliminated the conviction but returned the case to the Colorado trial court for further action. The Supreme Court's decision does not mean that Counterman cannot be prosecuted for the Colorado crime. It does mean that at a future trial, the jury will have to be instructed that the State must prove that the statements were reckless or intentional, and the jury must be correctly instructed regarding that element of the offense.

The State showed that Counterman's statements would be understood by a reasonable person to be threats. The prosecution violated the First Amendment because the State did not show that Counterman understood that his statements were threats or that he was at least reckless in not assessing that they would be interpreted as threats.  The decision is a reminder that the First Amendment protects speech that is sometimes “vituperative, abusive and inexact.”

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.


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