Episode description

Welcome to Supreme Court Opinions. In this episode, you’ll hear the Court’s opinion in Counterman v Colorado.

In this case, the court considered this issue: To establish that a statement is a "true threat" unprotected by the First Amendment, must the government show that the speaker subjectively knew or intended the threatening nature of the statement?

The case was decided on June 27, 2023. 

The Supreme Court held that To establish that a statement is a “true threat” unprotected by the First Amendment, the government must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness. Justice Elena Kagan authored the majority opinion of the Court.

While the First Amendment protects freedom of speech, it allows for restrictions of so-called “true threats.” A true threat is determined by the recipient’s perception, not the speaker’s intent. However, to prevent chilling protected speech, there must be a subjective mental-state requirement. This means that the speaker’s understanding of the threat is crucial. A recklessness standard—where a person consciously disregards a significant risk that their words might harm another—is the appropriate measure for true threats because it strikes a balance between safeguarding free speech and addressing genuine threats. In Counterman’s case, the government used only an objective standard, without considering Counterman’s understanding of his statements as threatening, in violation of the requirements of the First Amendment.

Justice Sonia Sotomayor authored an opinion concurring in part and concurring in the judgment, in which Justice Neil Gorsuch joined in part. Justice Sotomayor would not reach the question whether recklessness is sufficient for true-threats prosecutions generally.

Justice Clarence Thomas authored a dissenting opinion criticizing the majority for relying on New York Times Co. v Sullivan instead of applying the First Amendment as it was understood at the time of the Founding.

Justice Amy Coney Barrett authored a dissenting opinion, in which Justice Thomas joined, arguing that true threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard.

The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.