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Name: Counterman v. Colorado (2023) __ U.S. __ [143 S.Ct. 2106]
Case #: 22-138
Court: US Supreme Court
Opinion Date: 06/27/2023

Majority opinion: Justice Kagan delivered the opinion of the court, in which Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson joined.
Concurring opinion: Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined in part.
Dissenting opinions: Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion, in which Justice Thomas joined.

In a prosecution based on true threats, the First Amendment requires proof of the defendant’s subjective mens rea—the prosecution must show he consciously disregarded a substantial risk that his communications would be viewed as threatening violence. A jury found Counterman guilty of violating a Colorado stalking statute based on evidence he sent hundreds of Facebook messages (some threatening) to a local musician he had never met. On appeal, Counterman argued that the First Amendment required the State to show that he was aware of the threatening nature of his statements. The Colorado Court of Appeals affirmed, using an established objective standard. The U.S. Supreme Court ultimately granted certiorari because courts were divided about (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threats cases, and (2) if so, what mens rea standard is sufficient. Held: Judgment vacated and case remanded. True threats of violence are outside the bounds of First Amendment protection and punishable as crimes. The court reviewed its case law addressing speech that is not protected by the First Amendment and held the State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character so that protected speech is not chilled. Balancing the constitutional interest in free expression with the profound harms associated with true threats of violence, the court further concluded that the appropriate mens rea standard is recklessness.