The Supreme Court ruled 7-2 Tuesday that a speaker must have “some subjective understanding of his statements’ threatening nature” before he is accused of making a “true threat,” a category of speech not protected by the First Amendment.
“The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements,” Justice Elena Kagan wrote in the majority opinion, joined by Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson. “We hold that it does, but that a mental state of recklessness is sufficient. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
Justices Sonia Sotomayor and Neil Gorsuch concurred in judgement.
The case, Counterman v. Colorado, centers on Billy Raymond Counterman, who was sentenced to four and a half years in prison for repeatedly sending a local musician Facebook messages she found threatening. While the Colorado Court of Appeals determined a “reasonable person” would find Counterman’s statements threatening, Counterman said that was not his intent.
The Supreme Court vacated the Colorado Court of Appeals’ judgement and remanded it “for further proceedings not inconsistent with this opinion.”
The US Supreme Court is seen in Washington, DC, on June 26, 2023. (Photo by JIM WATSON/AFP via Getty Images)
Counterman’s lawyer told the justices during oral arguments that basing threats solely on how a “rational person” would interpret the statement and failing to consider a speaker’s intent could cause individuals to self-censor protected speech out of a fear their words may be considered a literal threat. A number of organizations that filed friend of the court briefs in the case, including religious freedom, child advocacy and civil liberties groups, raised similar concerns. (RELATED: SCOTUS Holds Law Making It Illegal To ‘Encourage Or Induce’ Illegal Immigration Does Not Violate First Amendment)
Justice Amy Coney Barrett filed a dissent, which Justice Clarence Thomas joined, arguing that the majority’s test for First Amendment protection “unjustifiably grants true threats preferential treatment.”
“The nature of a true threat points to an objective test for determining the scope of First Amendment protection: Neither its ‘social value’ nor its potential for ‘injury’ depends on the speaker’s subjective intent,” Barrett wrote. “[T]he Constitution ultimately declines to protect true threats for objective reasons, not subjective ones.”
“A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her,” she continued. “The Court’s decision thus sweeps much further than it lets on.”
Colorado Attorney General Phil Weiser said in a statement that the ruling will make it “more difficult to stop stalkers from tormenting victims.”
“In today’s ruling, the Court creates a loophole for delusional and devious stalkers and misapprehends the very nature of threats faced by stalking victims,” he said. “In short, this decision will make it more likely that victims of threats—mostly women—will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable.”
All content created by the Daily Caller News Foundation, an independent and nonpartisan newswire service, is available without charge to any legitimate news publisher that can provide a large audience. All republished articles must include our logo, our reporter’s byline and their DCNF affiliation. For any questions about our guidelines or partnering with us, please contact licensing@dailycallernewsfoundation.org.