Facts and Case Summary - Counterman v. Colorado

Billy Counterman was arrested on May 12, 2016, and charged with three counts of violating a Colorado anti-threat statute, Colo. Rev. Stat. § 18–3–602(1)(c) (2022), which makes it unlawful to repeatedly communicate with a 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.” Id. Counterman was charged with repeatedly threatening a local female singer and musician, C.W.

From 2014 to 2016, Counterman sent hundreds of Facebook messages to C.W. even though the two had never met. C.W. never responded and repeatedly blocked Counterman, and he responded by creating new Facebook accounts to resume contact.

Counterman’s messages included overfamiliar statements not commonly exchanged between strangers (“Good morning sweetheart”; “I am going to the store would you like anything?”). Other messages suggested that Counterman might be surveilling C.W. (“Was that you in the white jeep?” and “A fine display with your partner”). And other messages expressed anger at C.W. and imagined harm befalling her (“F*ck off permanently”; “Staying cyber life is going to kill you”; and “You’re not being good for human relations. Die.”).

Counterman’s messages made C.W. believe he was threatening her life. She contacted a lawyer and law enforcement.

At his trial, Counterman moved to dismiss the charges on First Amendment grounds, arguing that his messages were not “true threats” and could not form the basis of a criminal prosecution. To do so, he argued, would be a violation of his First Amendment rights to free speech.

The trial court denied Counterman’s motion to dismiss, holding that, under Colorado law, whether a statement is a true threat must be assessed using an objective standard: whether reasonable people hearing the comment would perceive it to be a threat. The case was sent to the jury which found Counterman guilty as charged. Counterman was sentenced to 54 months in prison.  He appealed to the Colorado Court of Appeals, which affirmed his conviction. The Colorado Supreme Court denied certiorari review. The U.S. Supreme Court granted certiorari (agreed to hear the case), decided the case, and published its opinion in June 2023. 

The Supreme Court’s decision found that to criminally prosecute a defendant based on true threats, the defendant’s subjective intent to threaten the victim must be established based on a showing of (at least) recklessness. The recklessness standard added nuance to the Supreme Court’s prior decision in Elonis, which held that a criminal conviction for true threats required a showing that the defendant intended to issue threats or knew the communications would be viewed as threats. Accordingly, the Supreme Court vacated the judgment of the Colorado Court of Appeals and remanded the case for further proceedings.

The First Amendment Provides That 

“Congress shall make no law . . . abridging the freedom of speech[.]”

Applicable Law

Under Colorado law, it is unlawful to “[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.” Colo. Rev. Stat. § 18–3–602(1)(c) (2022).

Procedure

Lower Court 1: District Court, Arapahoe County, Colorado

Lower Court 1 Ruling: Counterman was convicted in the District Court of Arapahoe County, Colorado, for stalking (serious emotional distress).  The Court held that, under Colorado law, the correct legal test for determining whether a statement is a true threat is an objective “reasonable person” standard.

Lower Court 2: Colorado Court of Appeals, Division II.

Lower Court Ruling 2: The Colorado Court of Appeals affirmed the District Court’s decision.  Relying on Colorado precedent, it declined to adopt a subjective standard in determining if Counterman could be convicted of communicating a true threat under state law.

Issue Before the U.S. Supreme Court

Does the First Amendment require proof that a defendant had some subjective understanding of the threatening nature of his statements to sustain a criminal conviction under a state’s anti-stalking statute?

Judgment

Reversed and remanded, 7-2, in an opinion by Justice Kagan on June 27, 2023. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment which Justice Gorsuch joined in part. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion which Justice Thomas joined.