Counterman v. Colorado: Changing how the Courts View the “True Threat” Doctrine

Last week the Supreme Court issued its decision in Counterman v. Colorado, changing how the courts will interpret the “true threat” doctrine moving forward.  Counterman involved a Colorado man who was cyberstalking a local singer, and sent her hundreds of Facebook messages over a two year period.  Some were weird or borderline creepy (he once asked her “I am going to the store would you like anything?”, even though they did not really know each other), but others threatened violence (“You’re not being good for human relations. Die.”).  The singer tried to block Counterman repeatedly, but he would just create new Facebook accounts and send new messages.  The messages had a significant impact on the singer’s mental health.

Counterman was eventually convicted of violating what amounted to a state anti-stalking law.  Counterman argued that he could not be prosecuted because his Facebook messages did not constitute “true threats,” and therefore were protected by the First Amendment.  A genuine “true threat” is a serous expression conveying that the speaker means to commit an act of unlawful violence, and as such, “[t]rue threats of violence, everyone agrees, lie outside the bounds of the First Amendment’s protection.”

Under previous Colorado cases, whether a message constituted a “true threat” was evaluated under an objective standard:  i.e. would a “reasonable person” have viewed the statements as threatening.  Counterman argued that the state needed to prove a subjective intent element:  i.e. to show that he was aware of the threatening nature of his statements (which seems a strange argument to make, given the obviously threatening nature of at least some of his Facebook posts, but maybe they were planning to mount a “diminished mental capacity” defense of some sort).

The Court essentially rejected both arguments and landed somewhere in the middle.  While acknowledging that “true threats” should require some degree of a subjective intent, Justice Kagan held that a mental state of “recklessness” would be enough, i.e. did the defendant consciously disagreed a substantial risk that his communications would be viewed as threatening violence (which itself is partially an objective standard).  The recklessness standard “offers enough ‘breathing space’ for protected speech, without sacrificing too many of the benefits of enforcing laws against true threats.”

What is not clear is how far the justices expect Counterman to apply outside of the criminal prosecution arena.  Courts have frequently required a higher degree of intent in criminal cases, due to the significant interests at stake (i.e. someone’s freedom from jail).  To that end, requiring some degree of a subjective intent to make a threat would make sense.  In cases where the potential discipline is less significant than jail time, however, it is not clear that the courts would require the same higher level of subjective intent.

For example, in student discipline cases, courts have frequently rejected the argument that a student cannot be disciplined because his speech does not rise to level of a “true threat”, because such speech could be subject to the material and substantial disruption standard of Tinker:

Further, regardless of whether Bell’s statements in the rap recording qualify as “true threats”, as discussed in part II.B., they constitute threats, harassment, and intimidation, as a layperson would understand the terms.

Bell v. Itawamaba County School Board, 799 F.3d 379, 396 (5th Cir. 2015); see also J.S. v. Manheim Township Sch Dist., 263 A.3d 295 (Pa. 2021) (“While we conclude that J.S.’s Snapchat memes did not constitute true threats, this does not end our inquiry. As cogently offered by the School District, even if not a true threat, a school may regulate speech and even punish a student, under Tinker, for speech that causes or foreseeably could cause a substantial disruption to the school environment.”).  Accordingly, student discipline cases involving speech will continue to be resolved under the traditional Tinker standard, as well as its progeny.