First Amendment speech vs. “True Threats”

Although the majority of the country, understandably, was spending the last week of June focused on what SCOTUS would do with student loans, Colorado criminal defense practitioners saw possibly one of the most important cases we have seen in a long time. Counterman v. Colorado clarified the stalking statute in Colorado but also likely has broader implications for any charge wherein a verbal or written communication is being classified as a “threat.”

First, the case. Mr. Counterman spent roughly two years sending hundreds of Facebook messages to a local musician, C.W. The two did not know each other, and C.W. did not respond and blocked Mr. Counterman. Mr. Counterman created more accounts to send more messages, some of which were fairly banal, like “Good morning sweetheart,” while some suggested he had been surveilling her and still more were thinks like “F*** off permanently.” C.W. became afraid that Mr. Counterman would harm her and reported his messages. 

Mr. Counterman was charged with stalking per CRS 18-3-602, which makes it unlawful “[r]epeatedly . . . 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.” Mr. Counterman’s attorney filed a motion to dismiss, arguing that his speech was protected by the First Amendment as they were not “true threats” but the trial court assessed the messages from an objectively reasonable person standard, requiring only that the State prove that a reasonable person would find the messages to be threatening with no need to prove that Mr. Counterman had any subjective intent to threaten C.W. The trial court found that the messages passed this test and denied the motion. After being convicted at trial, Mr. Counterman appealed and the Colorado Court of Appeals affirmed. SCOTUS granted cert and, voila, here we are with a monumental case for Colorado.

SCOTUS held two things: first, that the First Amendment requires the State to prove in a “true threats” case that the defendant had some subjective understanding of the threatening nature of his statements, and, second, that the State only must show this with a recklessness standard, meaning that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.

Essentially SCOTUS has built in a buffer zone to prevent otherwise protected speech from being “chilled” by uncertainty. Meaning, the Court was wanted to ensure that people who, for instance, might otherwise be engaging in protected political speech did not choose to silence themselves because there were worried whether their speech would be viewed by an objectively reasonable person as threatening. And with the lower recklessness standard the Court felt that it was striking a balance in order to ensure that the State could hold the proper offenders responsible. 

Solidifying the test for protected speech in any type of case, civil or criminal, as subjective rather than objective is monumental and will likely extend to many areas other than stalking. Practitioners should have their eye on this case with civil protection orders, violations of protection order, and even misdemeanor menacing.


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