Supreme Court vacates Colorado man’s stalking conviction in ‘true threat’ First Amendment decision

The Supreme Court in a 7-2 decision tossed a Colorado man’s stalking conviction on Tuesday in a case that defines when states can prosecute “true threats” not protected by the First Amendment.

Justice Elena Kagan, writing for the majority, rejected Colorado’s test that would weigh how an objective, reasonable person would perceive the statement and would not consider the intent of the sender.

Kagan wrote that states must prove the speaker’s recklessness for the threat to not be protected, a middle ground between the two parties’ proposals.

Kagan’s decision was joined by conservative Justices Samuel Alito, Brett Kavanaugh and Chief Justice John Roberts, as well as liberal Justice Ketanji Brown Jackson. Liberal Justice Sonia Sotomayor and conservative Justice Neil Gorsuch agreed with tossing the man’s conviction but they split with the majority in its ruling about true threats more broadly.

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Conservative Justices Clarence Thomas and Amy Coney Barrett dissented, with each writing a dissenting opinion. Thomas also joined Barrett’s dissenting opinion.

Billy Counterman, whom a jury found guilty of stalking after he sent more than 1,000 online messages to musician Coles Whalen, appealed to the justices, arguing he was diagnosed with a mental illness and did not personally intend for the statements to cause fear. 

“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Kagan wrote. “The State need not prove any more demanding form of subjective intent to threaten another.”

Counterman’s messages ranged from affectionate to hostile, including telling Whalen to “die” and “f— off permanently.”

No one disputed that the musician felt threatened. She canceled shows and obtained a restraining order.

But the case provided a pathway for the Supreme Court to more clearly define what constitutes a “true threat,” a category of unprotected speech that the court established decades ago.

In her concurring opinion, Sotomayor agreed that a recklessness standard was sufficient in this particular instance but said she would not decide whether that standard is sufficient when weighing true threats cases more broadly.

“True threats doctrine came up below only because of the lower courts’ doubtful assumption that petitioner could be prosecuted only if his actions fell under the true-threats exception,” Sotomayor wrote, joined by Gorsuch.

“I do not think that is accurate, given the lessened First Amendment concerns at issue. In such cases, recklessness is amply sufficient. And I would stop there. There is simply no need to reach out in this stalking case to determine whether anything more than recklessness is needed for punishing true threats generally,” she continued.

Colorado, which was backed by the Justice Department, argued that juries and judges should convict people of making threatening speech regardless of how they intended their statement to land. The harms of a threat don’t depend on the threatener’s subjective intent or knowledge, they contended.

That argument got the support of two of the court’s conservatives, Barrett and Thomas, who dissented.

“It should be easy to choose between these positions,” Barrett wrote. “True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard. Nonetheless, the court adopts a subjective standard, though not quite the one advanced by Counterman.”

Colorado Attorney General Phil Weiser (D) condemned the decision as creating “a loophole for delusional and devious stalkers.”

“In short, this decision will make it more likely that victims of threats — mostly women — will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable,” Weiser said in a statement.

Updated at 12:23 p.m. EDT.