The Supreme Court issued a ruling on Tuesday that establishes limits on laws criminalizing internet threats, stating that the First Amendment requires prosecutors to demonstrate that defendants acted recklessly and caused emotional harm. Justice Elena Kagan, writing for a majority of five justices in the 7-2 decision, took a balanced approach, stating that the state must prove that the defendant knowingly disregarded the risk that their communications could be seen as threatening violence. While true threats are not protected by the First Amendment, Justice Kagan argued that the risk of chilling protected speech justifies imposing additional burdens on prosecutors. She acknowledged the potential for individuals to self-censor out of fear of misjudging whether their statements constitute threats.
The case at hand involved Billy Counterman, a Colorado man obsessed with a singer-songwriter referred to as C.W. in court records. Counterman repeatedly messaged her on Facebook, creating new accounts when she blocked him. His messages, such as “Die. Don’t need you,” instilled fear in C.W. and disrupted her daily life, causing her to avoid walking alone, decline social engagements, and cancel performances. Counterman was charged under a Colorado law that criminalizes sending repeated communications that would cause reasonable people to experience severe emotional distress, and he was ultimately sentenced to four and a half years in prison. Counterman’s defense argued that the law violated the First Amendment because it did not require proof of intent to cause distress.
In their brief to the Supreme Court, Counterman’s lawyers expressed concern over the chilling effect of accidentally committing a “speech crime,” asserting that imprisoning individuals for negligently misjudging how others might interpret their words would undermine the freedom of expression. Lawyers for the state contended that the content of the messages, the method of delivery, and the resulting response were sufficient factors to consider, discounting the speaker’s subjective intent.
Justice Kagan examined previous Supreme Court rulings on other categories of unprotected speech, particularly libel. She noted that, in libel cases, public figures are required to demonstrate at least reckless disregard of the truth, indicating subjective awareness of probable falsity. She argued that a similar standard should apply in true-threats prosecutions. According to her analysis, recklessness in the context of threats means that the speaker is aware that others could interpret their statements as inciting violence but delivers them anyway.
Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Brett M. Kavanaugh, and Ketanji Brown Jackson joined Justice Kagan’s majority opinion. Justice Sonia Sotomayor, in agreement with the outcome but for different reasons, treated the case as involving stalking rather than threats. Justice Clarence Thomas dissented briefly, calling for a reconsideration of the 1964 libel decision New York Times v. Sullivan, which made it challenging for public officials to prevail in libel lawsuits by interpreting the First Amendment. In a second dissent, Justice Amy Coney Barrett, joined by Justice Thomas, argued that an objective standard was sufficient in true-threats prosecutions.
This is not the first time the Supreme Court has tackled a similar case. In 2014, they addressed a Pennsylvania man who faced prosecution for making threats on Facebook in the form of rap lyrics after his wife left him. Chief Justice Roberts, writing for the majority in the 2015 ruling, asserted that prosecutors must provide evidence beyond reasonable people interpreting statements as threats, emphasizing the significance of the defendant’s state of mind without specifying the exact legal boundary.
Justice Barrett criticized Justice Kagan’s position in the current case, Counterman v. Colorado, No. 22-138, as lacking principles. She argued that recklessness is a subjective concept that is open to interpretation. Responding to the criticism, Justice Kagan stated in a footnote that she was not bothered by it, emphasizing that there are worse things in law and life than being “just right.”
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