Counterman v. Colorado

Counterman v. Colorado, 600 U.S. 66 (2023), is a United States Supreme Court case concerning the line between true threats of violence punishable as crimes and free speech protected by the First Amendment. The states and lower courts were divided over how to define the line. By a 7–2 majority, the court decided that statements are not protected if the defendant recklessly disregarded a substantial risk that their statements would be viewed as threatening.

Beginning in 2010, Billy Counterman sent thousands of messages to singer-songwriter Coles Whalen that foreboded her death and followed her activities. Counterman was convicted of stalking in Colorado, with his conviction left intact by the Colorado Court of Appeals and Colorado Supreme Court. Under Colorado law, statements were not protected under the First Amendment if a reasonable person would view the statements as threatening, with no need to prove that the speaker had subjective intent to threaten. Writing for the majority, Justice Elena Kagan wrote that there must be some subjective understanding of the threatening nature of the statements, but that a mental state of recklessness is sufficient, with no need for any more demanding form of subjective intent. Although the decision left Counterman vulnerable to conviction on retrial, some criticized it for declaring that stalking could be protected by the First Amendment.