When is a threat not a threat? If you tell someone that you’ll make them an offer they can’t turn down, they might get excited. If you tell them that you’ll make them an offer they can’t refuse, on the other hand, that could be somewhat more alarming. Resolving this question isn’t just a matter of context and nuance—it’s also a potentially important free speech issue.
We may have an answer soon: The Supreme Court will hear Counterman v. Colorado in April to decide whether prosecutors must prove that a defendant meant to threaten someone with harm, or if they can opt for the lower threshold of whether a reasonable person might interpret a defendant’s actions or statements as a threat. Where the high court ultimately comes down on this distinction could be consequential in an age when it’s easier than ever for Americans to threaten not just each other, but also election workers, FBI agents, members of Congress, and even Supreme Court justices. How far does the First Amendment go to protect them?
At the heart of this case is a campaign of harassment that seems all too familiar. The plaintiff, Billy Counterman, used multiple Facebook accounts to send hostile messages to an unidentified local musician in Colorado. Among the numerous messages that Counterman sent her were ones that read, especially in the context of the years-long barrage, as threats. “Fuck off permanently,” Counterman said in one of the messages. “You’re not being good for human relations,” read another. “Die. Don’t need you.” The target, who never responded to him and blocked him multiple times, ultimately contacted Colorado police, who charged Counterman for violating the state’s anti-stalking statutes.
Colorado law defines the offense to describe anyone who “repeatedly follows, approaches, contacts, places under surveillance, or makes 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.” Notably, under the rulings of Colorado courts, prosecutors aren’t required to prove that the defendant intended to threaten a person. They instead must only show that a reasonable person would have taken the statements as threats, which is a much easier threshold to clear at trial.
A Colorado jury eventually found Counterman guilty and sentenced him to four and a half years in prison. Counterman then sought to overturn his sentence for violating the First Amendment. He argued that in order to qualify as a “true threat,” the legal term for a criminal threat, prosecutors had to prove that he meant to threaten someone, citing the Supreme Court’s ruling in Virginia v. Black in 2003 that struck down a Virginia statute that criminalized cross burning. The court wrote at the time that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.”
“The notion that one could commit a ‘speech crime’ by accident is chilling: Imprisoning a person for negligently misjudging how others would construe the speaker’s words would erode the breathing space that safeguards the free exchange of ideas,” Counterman told the justices in his petition for review, quoting from writings by former justices. “For this reason, First Amendment doctrine in many contexts imposes ‘mens rea requirements that provide breathing room ... by reducing an honest speaker’s fear that he may accidentally incur liability for speaking.’”
Colorado, for its part, urged the court to let the status quo prevail. It emphasized the broader impact that threats can have on other people by causing them fear and emotional distress, regardless of the speaker’s actual agenda. That effect, which can itself chill speech, places it outside the First Amendment’s protections, the state argued.
“A statement that expresses a serious intent to cause harm or injury is not a statement that invites further discourse; nor is it a statement either to which a listener can meaningfully respond or one that can result in an exchange of ideas,” Colorado told the justices in its counter brief. “On the contrary, that it causes its target to fear violence stymies any exchange of ideas or further conversation. These harms occur irrespective of the speaker’s subjective intent.”
This debate is a familiar one for most of the current justices. In 2014, the court agreed to hear Elonis v. United States, a case in which the defendant was prosecuted for posting self-written rap lyrics on Facebook. His lyrics, which were laden with violent imagery and references to First Amendment protections for violent speech, were largely directed at his estranged wife, his co-workers, police officers, and a kindergarten class. Anthony Elonis argued after his conviction that prosecutors hadn’t properly proven his intent and thus violated the First Amendment.
When the justices handed down their ruling in 2015, however, they avoided the First Amendment question altogether. The majority, led by Chief Justice John Roberts, instead resolved the case on narrower statutory grounds, frustrating two of the dissenting justices. Justice Samuel Alito, who wrote a partial dissent, said that the court’s approach to the intent question “is certain to cause confusion and serious problems.”
Justice Clarence Thomas, who dissented in full from that case, argued that the English and early American legal traditions had long punished threats without requiring more than general intent. “There is always a risk that a criminal threat statute may be deployed by the Government to suppress legitimate speech,” Thomas explained. “But the proper response to that risk is to adhere to our traditional rule that only a narrow class of true threats, historically unprotected, may be constitutionally proscribed.”
This was not a departure for Thomas, who has often sided with the government when it comes to criminalizing threats. In Black, the 2003 case where the court struck down an anti-cross-burning statute, he wrote a solo dissenting opinion that took issue with every aspect of the ruling. Thomas disagreed with the majority’s conclusion that the law criminalized speech instead of conduct, noting that even the segregationists who originally passed the law “understood the difference between intimidating and terroristic conduct and racist expression.”
And in a dissent from the court’s refusal to hear a set of cases where Kansas courts cited the Black ruling to overturn a state law that criminalized “reckless” threats of violence, Thomas also urged the court to take action in a future case. “In my view, the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate,” he argued. “It appears to follow that threats of violence made in reckless disregard of causing fear may be prohibited.”
Taking a different view is Justice Sonia Sotomayor. In 2017’s Perez v. Florida, she dissented from the court’s refusal to hear a case involving a Florida man who was prosecuted for drunkenly and perhaps jokingly talking about Molotov cocktails. Sotomayor argued that while the First Amendment does not protect threats of physical violence, the Supreme Court’s precedents have required courts and prosecutors to consider the free speech implications and context when looking at statements that might be protected.
“Even as she argued for a 15-year sentence, the prosecutor acknowledged that Perez may have been ‘just a harmless drunk guy at the beach,’ and it appears that at least one witness testified that she did not find Perez threatening,” she noted. “Instead of being instructed to weigh this evidence to determine whether Perez actually intended to convey a threat—or even whether a reasonable person would have construed Perez’s words as a threat—the jury was directed to convict solely on the basis of what Perez ‘stated.’”
How the court decides this case could have a significant impact on how and when police and prosecutors pursue violent threats in a digital age. Requiring them to prove a defendant’s intent could make it substantially more difficult to prosecute cases where context is king, with implications for the prevalence of violent threats as a whole. Without the intent standard, however, future defendants could risk facing charges for statements they may not have meant as threats. Four new justices have joined the high court since the Elonis ruling in 2015, making it unclear exactly which way the court will go on an important free speech question. A ruling is expected by July.
