Counterman v. Colorado

600 U.S. 66 (2023)

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Nature of the Case

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Facts

D sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. never responded. She repeatedly blocked D. But each time, he created a new Facebook account and resumed his contacts. Some of his messages were utterly prosaic (“Good morning sweetheart”; “I am going to the store would you like anything?”)-except that they were coming from a total stranger. Others suggested that D might be surveilling C. W. He asked “[w]as that you in the white Jeep?”; referenced “[a] fine display with your partner”; and noted “a couple [of] physical sightings.” A number expressed anger at C. W. and envisaged harm befalling her: “Fuck off permanently.” “Staying in cyber life is going to kill you.” “You’re not being good for human relations. Die.” C. W. was in fear and believed that D was “threatening her life.” declined social engagements, and canceled some of her performances, though doing so caused her financial strain. P charged D under a statute making it unlawful to “repeatedly . . . make[ ] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” The only evidence P was going to introduce at trial was D's Facebook messages. D moved to dismiss the charge on First Amendment grounds, claiming messages were not “true threats” and therefore could not form the basis of a criminal prosecution. The court assessed the true-threat issue using an “objective ‘reasonable person’ standard.” P had to show that a reasonable person would have viewed the Facebook messages as threatening. P had no need to prove that Counterman had any kind of “subjective intent to threaten” C. W. The court held that D’s statements “rose to the level of a true threat.” The jury found D guilty as charged. The Colorado Court of Appeals affirmed. D had urged the court to hold that the First Amendment required the State to show that he was aware of the threatening nature of his statements. It “declined today to say that a speaker’s subjective intent to threaten is necessary” under the First Amendment to procure a conviction for threatening communications. The Colorado Supreme Court denied review. The Supreme Court granted certiorari.