Impact of SCOTUS Decision in Counterman v. Colorado on Defining a True Threat

Protecting both free speech and victims of threats

In June 2023, the U.S. Supreme Court issued its decision in Counterman v. Colorado, overturning a stalking conviction based on hundreds of Facebook messages sent by the defendant to a local female musician. The Colorado stalking statute mandated an objective test for whether communications were threatening, penalizing those that would cause “a reasonable person to suffer serious emotional distress.” The Supreme Court concluded that constitutional protections for free speech required something more, namely that the government prove the defendant’s subjective intent to threaten. Specifically, the Court held that the government must prove at least a mental state of “recklessness” in order to obtain a criminal conviction based on speech. The ruling represented a shift in the law about “true threats,” a long-standing exception to First Amendment protections.

Join our instructors as they dive into the details of the decision and explore its implications for both First Amendment jurisprudence and practical issues in criminal and civil law.