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Appropriate Test for Determining Whether a “True Threat” is Unprotected By the First Amendment

Case Name: Counterman v. Colorado (2023) __ U.S. __
Case #: 22-138
Last Updated: June 27, 2023

Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.

Held:

True threats of violence are outside the bounds of First Amendment protection and punishable as crimes. Today we consider a criminal conviction for communications falling within that historically unprotected category. The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements. We hold that it does, but that a mental state of recklessness is sufficient. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.

This case was decided on 6/27/2023. Justice Kagan delivered the opinion of the court, in which Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson joined. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined in part. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion, in which Justice Thomas joined.

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