What are “True Threats” Under the First Amendment?

Last week, the Supreme Court heard a case about a Colorado man, Billy Ray Counterman, who was sentenced to over four years in prison for stalking due to threatening Facebook messages that he sent to a singer named C.W. Counterman argued that the charges violated his speech rights and that his messages were not “true threats,” which is a kind of speech not protected under the First Amendment. The issue in the case is whether or not his messages actually constituted under “true threats” (or if conduct like stalking should be distinguished); and if so, how should courts determine what a “true threat” is? In this episode, we dive into the facts and issues in the Counterman v. Colorado case, the history of “true threats” doctrine under the First Amendment, and recap the oral arguments, including whether the justices might decide that “true threats” should be determined by an objective test, such as if a reasonable person would regard the statement as a threat of violence; or whether they might find that it depends on the speaker’s specific intent. Genevieve Lakier of the University of Chicago and Gabe Walters of FIRE join host Jeffrey Rosen to discuss. 

Resources:

• Brief of Amicus Curiae Foundation for Individuals Rights and Expression in Support of Petitioner and Reversal, Counterman v. Colorado 
• Brief of First Amendment Scholars Evelyn Douek, Genevieve Lakier, and Eugene Volokh in Support of Respondent, Counterman v. Colorado 
• Oral argument in Counterman v. Colorado, April 19, 2023 (Audio by C-SPAN; transcript)

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