Counterman v. Colorado, 600 U.S. 66

Background

From 2014–2016 Billy Counterman sent hundreds of unwanted Facebook messages to C.W.; she never reciprocated, repeatedly blocked him, and he kept creating new accounts to continue contact.
Many messages suggested surveillance and expressed anger or violent imagery (e.g., “Die,” “Staying in cyber life is going to kill you”), which caused C.W. severe fear, anxiety, canceled performances, and changes to daily life.
Colorado charged Counterman under a stalking statute criminalizing repeated communications that would cause a reasonable person to suffer serious emotional distress and that did cause such distress; the prosecution relied solely on the messages.
Colorado courts applied an objective "reasonable person" true-threat standard (no subjective mens rea required) and upheld Counterman’s conviction; the Colorado Supreme Court denied review.
The U.S. Supreme Court granted certiorari and held that the First Amendment requires proof of some subjective mens rea for true-threat prosecutions, but that recklessness (consciously disregarding a substantial risk that statements would be viewed as threatening violence) is sufficient; it vacated and remanded.
Opinions: Majority (Kagan) adopts recklessness standard; Sotomayor (joined in part by Gorsuch) concurs in judgment but argues the Court should not have resolved the general mens rea question and favors a higher mens rea generally; Barrett (joined by Thomas) dissents, defending an objective standard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the First Amendment requires proof of the speaker’s subjective awareness that his communication is threatening	Counterman: yes — to avoid chilling protected speech, the State must prove subjective awareness/intent to threaten	Colorado: no — an objective reasonable‑person test suffices; only how the statement would be perceived matters	Yes. First Amendment requires a subjective mens rea in true‑threat prosecutions.
If subjective mens rea is required, what level of culpability suffices (purpose/knowledge vs recklessness vs negligence)	Counterman: at least knowledge or purpose to threaten (higher mens rea)	Colorado: lower or objective standards acceptable; negligence or objective test adequate	Recklessness suffices: conscious disregard of a substantial and unjustifiable risk that others will view the statement as a threat.
Whether Counterman’s conviction under Colorado’s objective standard comported with the First Amendment	Counterman: conviction invalid because no proof of his awareness that messages were threatening	Colorado: conviction valid under its established objective test	Conviction under a purely objective (negligence) standard violated the First Amendment; vacated and remanded.
Effect on prosecutions for stalking, harassment, and related civil enforcement (scope and practical impact)	Counterman: subjective standard protects speech and prevents overcriminalization of heated/ambiguous speech online	Colorado: objective standard necessary to protect victims and permit effective prosecution of stalking/harassment	Court balances interests: requires subjective mens rea but adopts recklessness to allow States meaningful ability to prosecute many threats, including in stalking contexts.

Key Cases Cited

Virginia v. Black, 538 U.S. 343 (2003) (defined “true threats” as statements conveying speaker’s intent to commit unlawful violence and analyzed intent requirement in cross‑burning statute)
Elonis v. United States, 575 U.S. 723 (2015) (explained difference between objective content of a statement and the speaker’s mental state in threat prosecutions)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (established subjective‑fault protection in defamation to avoid chill; actual malice standard)
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (explained strategic protection and mens rea role in unprotected‑speech doctrines)
Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement requires intent to produce imminent lawless action and likely to do so)
Hess v. Indiana, 414 U.S. 105 (1973) (clarified intent requirement for incitement‑type restrictions)
Hamling v. United States, 418 U.S. 87 (1974) (discussed scienter in obscenity prosecutions and knowledge of character of materials)
Voisine v. United States, 579 U.S. 686 (2016) (defined recklessness in criminal context as conscious disregard of substantial risk)
Watts v. United States, 394 U.S. 705 (1969) (per curiam) (distinguished political hyperbole from true threats based on context)
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (established historically unprotected categories such as fighting words and discussed their limited value)