The Supreme Court ruled 7-2 Tuesday that a speaker must have “some subjective understanding of his statements’ threatening nature” before he is accused of making a “true threat,” a category of speech not protected by the First Amendment.
“The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements,” Justice Elena Kagan wrote in the majority opinion, joined by Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson. “We hold that it does, but that a mental state of recklessness is sufficient. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
Justices Sonia Sotomayor and Neil Gorsuch concurred in judgement.
The case, Counterman v. Colorado, centers on Billy Raymond Counterman, who was sentenced to four and a half years in prison for repeatedly sending a local musician Facebook messages she found threatening. While the Colorado Court of Appeals determined a “reasonable person” would find Counterman’s statements threatening, Counterman said that was not his intent.
The Supreme Court vacated the Colorado Court of Appeals’ judgement and remanded it “for further proceedings not inconsistent with this opinion.”
Counterman’s lawyer told the justices during oral arguments that basing threats solely on how a “rational person” would interpret the statement and failing to consider a speaker’s intent could cause individuals to self-censor protected speech out of a fear their words may be considered a literal threat. A number of organizations that filed friend of the court briefsin the case, including religious freedom, child advocacy and civil liberties groups, raised similar concerns.
Justices Clarence Thomas and Amy Coney Barrett dissented from the majority.
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