Court Clarifies True Threats, Requires Subjective Recklessness

The Supreme Court today clarified the "true threats" threats exception to the First Amendment, holding that true threats require that a speaker had a subjective understanding of the threatening nature of their statements, under a recklessness standard. In short, "The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening in nature."

In so ruling, the Court rejected an objective standard--that a reasonable person would understand their statements as threats. As a result, the Court narrowed the range of unprotected true threats, and protects more threats, again, so long as the speaker didn't have a subjective understanding of the threatening nature of their statements.

The ruling is consistent with a string of cases in recent years narrowing the familiar "categories" of unprotected speech.

The case, Counterman v. Colorado, arose out of a series of threatening Facebook posts by Billy Counterman and directed at a local singer and musician. As a result of the posts, the recipient "stopped walking alone, declined social engagements, and canceled some of her performances, though doing so caused her financial strain."

Counterman was convicted under a Colorado stalking statute. He raised a free-speech defense, but the Colorado courts rejected it, applying an objective standard and holding that the statements were objectively threatening.

The Court reversed. It ruled that the First Amendment requires a subjective standard--that Counterman had a subjective understanding that his statements were threatening. The Court said that anything else would chill too much otherwise protected speech.

The Court went on to set the subjective bar relatively low, however, at recklessness. Here's why:

In advancing past recklessness, we make it harder for a State to substantiate the needed inferences about mens rea (absent, as is usual, direct evidence). And of particular importance,we prevent States from convicting morally culpable defendants. For reckless defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.

Justice Sotomayor concurred, joined in part by Justice Gorsuch. She wouldn't've "reach[ed] the distinct and more complex question whether a mens rea of recklessness is sufficient for true-threats prosecutions generally," although she agreed with the Court that a subjective, reckless standard was appropriate here. She wrote, "Furthermore, requiring nothing more than a mens rea of recklessness is inconsistent with precedent, history, and the commitment to even harmful speech that the First Amendment enshrines."

Justice Thomas dissented, taking aim at New York Times v. Sullivan and the Court's use of that case in crafting the subjective, reckless standard.

Justice Barrett dissented, joined by Justice Thomas, arguing that the Court's reckless standard "unjustifiably grants true threats preferential treatment" under the First Amendment.