In Counterman v. Colorado (June 27, 2023), the U.S. Supreme Court held that in order for a defendant to be convicted of a crime for making a threat to another person, the “State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”  In other words, the Court held that subjective intent (recklessness) must be required for criminalizing threats. The Court held that objective reasonableness isn’t restrictive enough a standard to criminalize threats.

For a period of years, Counterman harassed a woman online by sending hundreds of Facebook messages. Whenever she would block him, he created a new account and kept sending messages. The messages said that he was watching her, described her activities, and also made angry threats of violence.  According to the Court’s summary of the facts:

She believed that Counterman was “threat[ening her] life”; “was very fearful that he was following” her; and was “afraid [she] would get hurt.” As a result, she had “a lot of trouble sleeping” and suffered from severe anxiety. She stopped walking alone, declined social engagements, and canceled some of her [singing] performances, though doing so caused her financial strain. Eventually, C. W. decided that she had to contact the authorities.  (citations omitted)

Counterman was convicted of violating a Colorado statute that criminalizes one who:

Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. Colo. Rev. Stat. §18–3–602(1)(c) (2022).

The Court began by stating that “[t]rue threats of violence, everyone agrees, lie outside the bounds of the First Amendment’s protection.” However, the Court held that the absence of a subjective mental state “will chill protected, non-threatening speech” and that at least recklessness must be proven as to the speech’s threatening character.

This holding, however, is problematic for protecting people against online threats of violence. Ironically, under the reckless standard required by Counterman, a deranged stalker will fare better than one who understands what is reasonable; the deranged stalker’s threats can’t be criminalized. The most frightening threats are those by obsessed stalkers who have no awareness of unreasonable they are being.  These people are acting beyond reason. They are unhinged.

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