What Determines Whether Speech Is Unprotected by the First Amendment?

Legal Analysis of the Supreme Court's 7-2 Decision in Counterman v. Colorado

Although it was not closely watched as some of the other “blockbuster” decisions to be released in the coming days, there was an important First Amendment case released on June 28, 2023. Counterman v. Colorado involved clarifying the appropriate standard for determining whether speech poses a “true threat,” and what the government must prove to remove the speech from First Amendment protection.  

While the High Court has long recognized “true threats” as an exception to free speech protections, the formidable question presented to the Supreme Court in this case is “whether the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective ‘reasonable person’ would regard the statement as a threat of violence.” 

The case revolves around Billy Raymond Counterman’s appeal of his Colorado-based social media stalking case on First Amendment grounds. After stalking singer-songwriter named “C.W.” on Facebook for two years, the case went to court and Counterman was found guilty and sentenced to four and a half years in prison. He appealed twice, and after the Colorado Supreme Court rejected the case, the Supreme Court took it.  

In today’s social media climate and the evolving standards applicable to speech in such forums, the High Court opinion was important for First Amendment purposes. 

One need not ponder too long to envision a scenario where a pro-life counselor or pastor posts something on Facebook, Twitter, etc. that some Marxist prosecutor argues represented a threat to community safety. Or imagine someone who writes press releases or social media posts for a conservative activist group that criticizes a school official for hosting a drag show endangering children. Can the school official claim the post was a “true threat” to his safety and no longer protected by the First Amendment?  

The Court adopts a recklessness standard for true threats, meaning that the speaker must have either known that his speech threatened violence or consciously disregarded a substantial risk that his communication would be regarded by the listener as threatening violence. The Court held that the recklessness standard was required because the First Amendment demands that the state prove more than that a reasonable person might view the speech as a threat. 

Interestingly, Justice Thomas dissents and critiques the Court for adopting the New York Times v. Sullivan standard for true threats. His basis for dissenting is that Sullivan was improperly decided, and he suggests the Court compounded its error by grafting that improper standard into another area of First Amendment law. 

Justice Barrett rejected the majority’s opinion, joined by Justice Thomas, saying that an objective standard of the nature of true threats most closely aligns with the First Amendment. 

The question, as is oft true in First Amendment cases, is not what the best approach is but what is constitutionally required or proscribed. That is a difficult question to answer; all Justices seem to have reasoned in good faith and have compelling arguments for their position. 

 (1) The majority, which includes Chief Justice Roberts and Justices Kagan, Alito, Kavanaugh, and Jackson, seems well intentioned by imposing a subjective element requirement to the test. They are admirably trying to draw a line that diminishes the prospects that a speaker will be sanctioned by criminal or civil penalties for engaging in protected speech. The majority’s test says that the speaker must know his statement was a true threat of violence against an individual or recklessly disregard the fact that it would be perceived as a true threat of physical violence. The fear of chilling protected speech is admirable. 

 (2) Justices Sotomayor and Gorsuch said that while a subjective test of the speaker’s belief is warranted, they were not willing to say that recklessness is constitutionally required in all cases. 

 (3) Justices Barrett and Thomas argued that the First Amendment requires merely an objective standard and that it is sufficient to safeguard constitutionally protected speech. Their definition, which is based on historical precedent in this area, would only define true threats as a statement that (a) expresses “an intent to commit an act of unlawful violence,” (b) threatens violence against a particular individual or group of individuals, and (c) is threatening to a reasonable listener who is familiar with the entire factual context in which the statement occurs. This test protects against sanctioning speech that is “merely offensive, poorly chosen, or unpopular,” as they suggest those would not be subject to sanction. 

 We can be sympathetic to all three positions. With the threat of a chill on protected speech, such as in the case of a prolife counselor, it is not a bad idea to impose some subjective intent requirement. But Justices Barrett and Thomas make a compelling argument that, properly defined in 3(a)-(c) above, true threats litigation will not run afoul of protected speech of the prolife counselor unless he threatens violence. 

Counterman v. Colorado tasked the Supreme Court with clarifying a difficult but important question, to be sure. After the June 28 decision, the speaker must recklessly disregard whether his statements (which do not explicitly threaten violence) could be regarded as a threat of physical violence. 

Though many will be rightly sympathetic to the fear and injury C.W. suffered as a result of Counterman’s threats and may view the Supreme Court’s decision as letting Counterman off the hook for his stalking behavior, it is important to note that the decision sends the case back to the trial court for further proceedings. What the Supreme Court’s decision means is that the government must present evidence in further trial court proceedings that Counterman either knew his speech was threatening or that he consciously disregarded a substantial risk that C.W. would view his communications with her as threatening physical violence. 

“Cases involving these important issues arouse passionate debate on both sides, particularly when sympathetic victims such as C.W. are involved,” said Daniel J. Schmid, Senior Litigation Counsel for Liberty Counsel. “Sometimes the law is black and white. Other times, difficult questions arise as to what extent the Constitution demands a result that a great many people may disagree with because of the circumstances surrounding the issue,” Schmid continued. “The important question is and must remain, what does the Constitution require. For if we abandon that inquiry, free speech – which is of transcendent value to all Americans – may well be the casualty.”