Counterman v. Colorado, 600 U.S. 66

From 2014–2016 Billy Counterman sent hundreds of unwanted Facebook messages to C.W.; she never responded, repeatedly blocked him, and the messages included statements that she perceived as threats of violence.
C.W. suffered fear, anxiety, altered daily life (avoiding being alone, canceling performances) and eventually contacted authorities.
Colorado charged Counterman under a stalking statute, Colo. Rev. Stat. § 18‑3‑602(1)(c), based solely on his repeated communications; no independent evidence of actual surveillance or following was offered.
The Colorado trial court (and Court of Appeals) applied an objective reasonable‑person test (no subjective mens rea required) and the jury convicted Counterman.
The U.S. Supreme Court held that the First Amendment requires the State to prove a subjective mental state in true‑threat prosecutions, but that recklessness (conscious disregard of a substantial, unjustified risk that others would view the communication as threatening) is sufficient; the Court vacated and remanded the conviction because Colorado had used a purely objective standard.

Issue	Plaintiff's Argument (Counterman)	Defendant's Argument (Colorado)	Held
Whether the First Amendment requires a subjective mens rea to criminalize “true threats.”	First Amendment bars conviction absent proof the speaker was subjectively aware that his statements would be viewed as threatening.	No; threat status is objective—what a reasonable person would view suffices.	The First Amendment requires a subjective mens rea in true‑threat prosecutions.
If a subjective mens rea is required, what level suffices (purpose, knowledge, recklessness, negligence)?	(Counterman) Argued for a subjective requirement at least higher than negligence; urged that knowledge or purpose might be required.	(Colorado) Argued objective standard adequate; did not press a particular subjective level.	Recklessness is sufficient: the defendant must consciously disregard a substantial and unjustifiable risk that others would view the communication as threatening.
Application to Counterman (was conviction constitutional under the First Amendment?)	Conviction invalid without proof of subjective recklessness/intent.	Conviction valid under Colorado’s objective reasonable‑person standard.	Colorado's use of an objective test violated the First Amendment; case vacated and remanded.

Virginia v. Black, 538 U.S. 343 (2003) (defines "true threats" as serious expressions of intent to commit unlawful violence and discusses intent requirement in cross‑burning statute)
Elonis v. United States, 575 U.S. 723 (2015) (threat determination focuses on what the statement conveys to a reasonable recipient; cautions about mens rea)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (First Amendment requires heightened fault standard for defamation of public officials—actual malice)
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (endorses mens rea elements in unprotected‑speech contexts to avoid chill and self‑censorship)
Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement doctrine: intent to produce imminent lawless action and likelihood required)
Hess v. Indiana, 414 U.S. 105 (1973) (incitement standard requires intent to produce imminent lawless action)
Hamling v. United States, 418 U.S. 87 (1974) (obscenity prosecutions require scienter regarding character/nature of materials)
Voisine v. United States, 579 U.S. 686 (2016) (recklessness defined as conscious disregard of a substantial and unjustifiable risk)
United States v. Stevens, 559 U.S. 460 (2010) (survey of historically unprotected categories of speech)
Watts v. United States, 394 U.S. 705 (1969) (per curiam) (distinguishes political hyperbole from true threats)