Counterman v. Colorado
In brief
A true-threat prosecution must show that the speaker was at least reckless about whether the speech would be understood as threatening.
- Where it stands
- Decided
Decided 7-2 · June 27, 2023 · Opinion by Justice Kagan
- What it’s about
- This case examines whether a person's threatening Facebook messages constitute a 'true threat' unprotected by the First Amendment.
- Who it affects
- Prosecutors must now prove more than that a reasonable person would view words as threatening. For example, a prosecution based on threatening Facebook messages must show the speaker was at least reckless about their threatening nature.
Summary: written with AI from the case record.
What it's about
The Court held that the government must prove the speaker had some subjective understanding of the statements' threatening nature, using at least a recklessness standard.
The decision sets a nationwide First Amendment floor for criminal cases involving true threats, a category of speech that can be punished.
Question presented
Whether a person's threatening Facebook messages constitute a 'true threat' unprotected by the First Amendment.
What the Court decided
Holding
The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness. 497 P. 3d 1039, vacated and remanded.
- Result
- Vacated
The vote
- Joined the judgment
- Concurred in a separate opinion
- Dissented
- Wrote an opinion
- Concurring · 1agreed with the result, wrote separately
- Sotomayorwrote separately
From the opinions
“The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness.”
“Because this unjustifiably grants true threats preferential treatment, I respectfully dissent.”
What's next
The Colorado ruling was vacated and the case was sent back for further proceedings. Lower courts must apply the recklessness standard in true-threat cases.
Docket activity
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Brief added: Questions Presented
More questions
- What did the Supreme Court rule in Counterman v. Colorado?
- The Court required the government to prove that a speaker had some subjective understanding of a statement's threatening nature. Recklessness is sufficient.
- Who won Counterman v. Colorado?
- Counterman won the central First Amendment issue because the Court rejected a purely objective test. The Colorado decision was vacated and remanded.
- How does Counterman affect threat prosecutions?
- Prosecutors must show more than that a reasonable person would see a threat. They must prove the speaker was at least reckless about the threatening character.
- What happens next in Counterman v. Colorado?
- The case returns to Colorado for further proceedings. Courts must evaluate the case using the Supreme Court's recklessness standard.
- Is the recklessness rule still the law after Counterman v. Colorado?
- Yes. The Court said the First Amendment requires proof that the defendant was at least reckless in true-threat cases.
Sources
Primary materials plus reporting. Best-effort analysis: this explainer relies on a mix of primary materials and trusted secondary sources. Official filings and opinions remain authoritative.