At oral argument April 19, the nine justices of the U.S. Supreme Court pressed attorneys on how to define true threats from a Colorado appeal.
The appeal asks the high court to clarify how prosecutors must establish intent for speech to be considered a “true threat” unprotected by the First Amendment. Courts have taken a split approach using an objective reasonable person standard or requiring proof the speaker subjectively knew the message would be threatening.
The justices heard from John Elwood, a partner at Arnold & Porter’s Washington D.C. office, representing the appellant as well as Colorado Attorney General Phil Weiser representing the state and U.S. Deputy Solicitor General Eric Feigin representing the United States as amicus curiae.
Counterman v. Colorado
Billy Counterman from 2014 through 2016 sent Facebook messages to Denver musician Coles Whalen. Despite being blocked multiple times, Counterman continued to send Whalen messages from new accounts. The messages included references to seeing Whalen in person and messages she interpreted as physical threats to her (“Staying in cyber life is going to kill you. Come out for coffee. You have my number” and “You’re not being good for human relations. Die. Don’t need you.”). Whalen said she canceled public performances out of fear that Counterman would show up.
Whalen hired an attorney and obtained a protective order. In 2016, Counterman was convicted by a Colorado jury for stalking (serious emotional distress) and sentenced to 4 ½ years in prison.
Counterman appealed to the state Court of Appeals which upheld his conviction in 2021. After the Colorado Supreme Court declined to hear the case, Counterman appealed to the U.S. Supreme Court which granted certiorari in January.
Christopher Jackson, a partner at Holland & Hart and co-chair of the firm’s appellate practice, said the line of questioning from the justices Wednesday probably means the court is prepared to overturn the Court of Appeals ruling.
“I think that a reversal is very likely,” said Jackson. “I don’t think they’re likely to adopt the full most restrictive test that the petitioner advocated for, but I do think that they’re going to reverse the judgment and impose some kind of a mens rea standard.”
Jackson said some of the topics that stood out during oral argument were questions around the level of mens rea the court might apply and apparent concerns from the justices over the decision of the trial court to not allow Counterman to testify about his intent.
Other themes that came out of oral arguments included the nature of speech in niche communities, especially on the internet, and questions about how context colors communications.
The U.S. Supreme Court will likely publish its opinion in the case in its 2022 term which ends this summer.
Context Around Speech
At oral argument, Weiser argued the context of the messages provided enough information to discern intent without Counterman testifying. He also argued that overruling the lower court could impact public safety.
“Requiring specific intent in cases of threatening stalkers would immunize stalkers who are untethered from reality. It would also allow devious stalkers to escape accountability,” said Weiser in Colorado’s opening statement.
The justices pressed Weiser on context and how it could color messages and transform them into true threats.
Chief Justice John Roberts pointed Weiser to one of the messages Counterman sent of a meme with liquor bottles captioned “A guy’s version of edible arrangements.” Roberts asked Weiser how that message could be taken as a threat.
Weiser asserted Counterman’s speech crossed the line into true threats after the increasingly hostile tone of messages paired with the creation of new accounts once old ones were blocked.
Given the context, Roberts then asked Weiser if a message like “good morning” could be interpreted as a threat. “Yes. The content of the speech that crossed the line was when it escalated to a tone and to statements about her life being at stake,” said Weiser.
Justice Neil Gorsuch followed up and asked why, if context redefines a message and speaker’s intent, Counterman’s testimony and views on the messages were not needed to secure a conviction.
“It doesn’t get to the nature of the harm. Statements can be objectively terrorizing to somebody and someone can say, ‘I had no idea,’” responded Weiser.
The justices asked Elwood a series of questions to discern how written messages online could impact true threats.
Justice Clarence Thomas asked Elwood how a direct message, like “I will kill you,” could be impacted by surrounding context in a true threat case.
“It can be open to a lot of different meanings depending on what happens around it,” said Elwood who noted it would mean something different if sent between siblings arguing over eating the last brownie.
Justice Samuel Alito presented a hypothetical scenario where someone is brought up on criminal charges for threatening their spouse after publishing a fictional story online about murdering a spouse with details that lined up with their own life. Alito asked how a case would proceed if law enforcement, or the spouse, or a neighbor read the story as a threat.
“I think that’s one of the problems with objective standards generally, the rough and tumble of factors … the court has said time and again how that yields unpredictability, which is bad for speech,” said Elwood.
Mens Rea
Alito asked Elwood to address how mens rea should be shown in true threat cases with First Amendment protections in mind. “Is it purposefulness? Is it knowing? Is it recklessness? Is it negligence? What do you think it must be to satisfy the First Amendment?”
“I think it should be knowledge of the thing that makes the conduct wrongful. In most threat statutes, that’s knowledge that the words you use are going to cause fear,” said Elwood who noted the Colorado statute at issue would be knowledge of causing emotional distress.
Justice Sonia Sotomayor said her understanding of the core question was whether or not Counterman’s conviction rested on a pure negligence standard — knowingly speaking in a way a reasonable person would view as a threat.
Sotomayor asked Weiser how, while knowing there are cases involving mental illness or other exceptions, criminal charges can move forward without some knowledge of someone’s intent. “At what point are we defining crimes without some sort of knowledge element by the person?”
Weiser said Counterman’s case should fall in the same category as cases of defamation and fighting words. “Both of those situations involve direct harm on individuals that happen.”
Joining as an amicus party for the U.S. Department of Justice, Feigin urged the court to uphold the objective observer standard or adopt a recklessness standard for a defendant’s subjective intent.
“Everyone agrees that in order to fall in that category [of true threats], [speech] has to be a statement that a reasonable person not just could, but would, interpret as a serious threat to do unlawful violence,” said Feigin who argued states should be allowed to adopt their own heightened mens rea standards. “Then we’re basically just having a policy debate about how much breathing room is necessary.”
Feigin argued the DOJ would have a harder time securing convictions that are in the interest of public safety with a heightened mens rea standard. “It impedes law enforcement from actually arresting and bringing charges in an early stage. They have to wait a lot longer for the objective evidence to build up,” Feigin added.
‘Rough and Tumble’ of the Internet
In his opening remarks, Elwood referenced the impact upholding the Colorado Court of Appeals’ ruling could have on online communications.
“Criminalizing misunderstanding is especially dangerous in an age when so much communication occurs on social media, which brings together strangers in an environment that removes much of the context that gives words meaning,” said Elwood.
A handful of amicus parties to the case raised concerns that using a reasonable observer standard could harm free speech on the internet in communities that use niche language that might be seen as a threat to outsiders. Elwood referenced those briefs when asked by Gorsuch about the potential effect upholding the ruling could have.
“It automatically causes people to kind of chill [their speech], to go back to the area where they have safety. And I think that is what you would lose, you would lose some of the rough and tumble of speech, which is especially important on the internet,” said Elwood.
Justice Elena Kagan asked about how culture impacts speech, referencing cases where minority religions have phrases that could be seen as threatening by outsiders.
“There’s a lot of speech on the internet that walks that line,” responded Elwood. The “rough and tumble” nature of internet speech might be seen as threatening to some, but he said the true threat line is crossed when someone implies they will execute a threat.
Thomas asked Weiser to draw the line between speech that a sensitive observer might find offensive and a true threat. Thomas as well as Gorsuch and Justice Amy Coney Barrett referenced heightened sensitivity people may have toward certain topics and subjects.
“Sensitivity has to be towards unlawful physical violence. And that is something outside what might make someone uncomfortable or even hurt their feelings,” responded Weiser.