Counterman v. Colorado
Wikipedia · Justia (with opinion) · Docket · oyez.org
Argued on Apr 19, 2023.Decided on Jun 27, 2023.
Petitioner: Billy Raymond Counterman.Respondent: The People of the State of Colorado.
Advocates: John P. Elwood (for the Petitioner)
Philip J. Weiser (for the Respondent)
Eric J. Feigin (for the United States, as amicus curiae, supporting the Respondent)
Facts of the case (from oyez.org)
Billy Raymond Counterman repeatedly contacted a person over Facebook in 2014, sending her “creepy” messages from numerous different accounts even after she repeatedly blocked him. Some of the messages implied that Counterman was watching her and saying that he wanted her to die or be killed. She reported Counterman to law enforcement, who arrested him in 2016. He was charged with one count of stalking (credible threat), one count of stalking (serious emotional distress, and one count of harassment; before trial, the prosecution dismissed the count of stalking (credible threat).
Counterman claimed that the remaining charges, as applied to his Facebook messages, would violate his right to free speech under the  First Amendment because they were not “true threats.” The trial court denied his motion to dismiss, and a jury found him guilty of stalking (serious emotional distress). The Colorado Court of Appeals affirmed his conviction.

Question
To establish that a statement is a "true threat" unprotected by the First Amendment, must the government show that the speaker subjectively knew or intended the threatening nature of the statement?

Conclusion
To establish that a statement is a “true threat” unprotected by the First Amendment, the government must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness. Justice Elena Kagan authored the majority opinion of the Court.
While the First Amendment protects freedom of speech, it allows for restrictions of so-called “true threats.” A true threat is determined by the recipient’s perception, not the speaker’s intent. However, to prevent chilling protected speech, there must be a subjective mental-state requirement. This means that the speaker’s understanding of the threat is crucial. A recklessness standard—where a person consciously disregards a significant risk that their words might harm another—is the appropriate measure for true threats because it strikes a balance between safeguarding free speech and addressing genuine threats. In Counterman’s case, the government used only an objective standard, without considering Counterman’s understanding of his statements as threatening, in violation of the requirements of the First Amendment.
Justice Sonia Sotomayor authored an opinion concurring in part and concurring in the judgment, in which Justice Neil Gorsuch joined in part. Justice Sotomayor would not reach the question whether recklessness is sufficient for true-threats prosecutions generally.
Justice Clarence Thomas authored a dissenting opinion criticizing the majority for relying on New York Times Co. v. Sullivan instead of applying the First Amendment as it was understood at the time of the Founding.
 
Justice Amy Coney Barrett authored a dissenting opinion, in which Justice Thomas joined, arguing that true threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard.