Colorado man’s First Amendment challenge will test the scope of protection for threatening speech

There is no dispute that the Facebook messages Billy Raymond Counterman sent to local Colorado musician Coles Whalen made her feel afraid. For years, Counterman sent increasingly menacing messages in which he suggested that he had seen Whalen – who is identified only by her initials in court documents, but who has discussed the case on her website – while driving and made comments such as “Die” and “Fuck off permanently.” Whalen told a family member that she was “extremely scared” after receiving these messages. She canceled appearances and her mental health declined. In 2017, Counterman was convicted and sentenced to four-and-a-half years in prison for stalking.

On Wednesday the Supreme Court will take up Counterman’s appeal to consider how courts should determine what constitutes “true threats,” which are statements not protected by the First Amendment. Should they use an objective test, that looks at whether a reasonable person would regard the statement as a threat of violence? Or should they instead use a subjective test, that requires prosecutors to show that the speaker intended to make a threat?

Both sides in Wednesday’s case agree that the issue is an important one. Counterman stresses that the “notion that a person can spend years in prison for a ‘speech crime’ committed by accident is chilling.” But the state of Colorado, which prosecuted Counterman, counters that Counterman’s messages frightened their recipient and disrupted her life. “This is precisely why threats of violence are not protected by the First Amendment,” the state says: to shield individuals from the fear of violence, which follows from the threats “no matter what the person making the threat intends.”

Colorado’s intermediate appeals court upheld Counterman’s conviction. It ruled that to determine whether Counterman’s statements qualified as a “true threat,” courts should apply an objective test that considers whether a reasonable person would regard the statement as a threat of violence. Because Counterman’s statements were true threats, the appeals court concluded, they were not protected by the First Amendment – and his conviction for stalking therefore did not violate the Constitution.

Counterman came to the Supreme Court last summer, asking the justices to take up his case – which they agreed to do earlier this year.

In his brief in the Supreme Court, Counterman stresses that the First Amendment protects speech from government interference even when others may regard it as offensive. There is a presumption that restrictions on the content of speech are invalid, he says. If the government wants to regulate speech, it must show that there is a long tradition of doing so. But there is not such tradition of holding someone criminally liable for speech that he did not intend as a threat, he argues.

The test for determining whether speech is a “true threat” that is not protected by the First Amendment must consider the speaker’s intent, Counterman contends. A purely objective test, like the one used by the Colorado court, runs the risk of criminalizing “inevitable misunderstandings” and good-faith miscommunications – particularly when so much speech occurs on the internet, where “the evidence of criminal conduct consists of bare words on a screen.”

There is also a real risk that the state court’s objective test will restrict even legal speech as well, Counterman continues. Not wanting to risk criminal liability, speakers will refrain from any speech that, although legal, might nonetheless “be construed as threatening in nature.” This is particularly true, Counterman suggests, for members of unpopular political groups or ethnic or religious minorities, “whose beliefs might differ from the police, prosecutors, and jurors who enforce the reasonable person standard” and who may worry that restrictions will be selectively enforced.

Under a subjective test, Counterman concludes, his conviction cannot stand. His speech was constitutionally protected because Counterman, who suffers from mental illness, did not intend to threaten the musician. The trial judge “appeared to recognize as much,” Counterman notes, “calling Counterman’s statements ‘delusional’ and saying he thought that ‘most people’ would give Counterman ‘the benefit of the doubt that he is doing it through a lack of understanding, as [o]pposed to a malicious intent.’” But prosecutors told the jury that they only had to show that a “reasonable person” would be disturbed by Counterman’s statements – not that he knew that they would cause distress for the woman herself.

Colorado disputes Counterman’s characterization of the history of government regulation. In early English and U.S. history, threats were punished regardless of the speaker’s intent, the state contends. That approach continued into the 20th century, the state says, and it is reflected in the Supreme Court’s First Amendment cases involving other kinds of speech, such as incitement, defamation and false or misleading commercial speech.

Although the “ultimate inquiry” is “whether an intended or foreseeable recipient would reasonably perceive the statements as a serious expression of intent to commit physical violence,” the state continues, the test must also look at the entire context in which the statements are made – including the platform on which the statements were communicated and whether the statement was made publicly or privately. This approach, the state reasons, acknowledges that, when viewed in context, words may not always convey the meaning that they would standing alone; it also accounts for the unique challenges posed by communications over the internet.

At the same time, the state adds, because the test does not hinge on the reaction of a statement’s recipient, it “protects political hyperbole, art, other valuable expression, and even poorly chosen words by requiring that the entire context be considered.”

Finally, the state emphasizes that any test that requires prosecutors to show that the speaker intended to make a threat does not provide enough protection for the targets of the speech. Even if a speaker does not realize that the target of his statement feels threatened, the state tells the justices, the speech can still have “debilitating impact.” Moreover, the state adds, the harm from threats can affect not only individuals but also institutions, such as schools and houses of worship – sometimes prompting them to close down.

Applying the proper “context-driven objective test” to this case, the state writes, “underscores just how threatening Counterman’s messages were. “Using the First Amendment to immunize harmful, aggressive, and repeated behavior, like Counterman’s here, would distort the protections our Constitution provides by enabling more harm and less speech.”

The question before the court in Counterman’s case is a familiar one. Nearly a decade ago, the court granted review in Elonis v. United States, involving the same issue, but ultimately decided that case on a different ground.