Argument Previews: Colorado ‘True Threat’ Appeal Goes to SCOTUS

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The U.S. Supreme Court April 19 will hear oral arguments for an appeal out of state court over what’s considered a “true threat.” / Law Week file.

Next week, the U.S. Supreme Court will hear oral arguments for an appeal out of the state court over what’s considered a “true threat.” 

On April 19, the high court is set to hear the appeal from Billy Counterman following his 2017 convictions for stalking connected to a series of Facebook messages he sent a local musician. 

The case asks the high court to settle different approaches taken by courts across the country to prove someone’s intent behind online messages. Since the U.S. Supreme Court’s 2015 decision in 2015’s Elonis v. U.S., prosecutors needed to prove someone’s subjective intent of a message for it to rise to a “true threat” not protected by the First Amendment. 

Since then, federal and state courts have taken split approaches to gauge someone’s subjective intent. The U.S. Supreme Court in January agreed to hear an appeal from the Colorado Court of Appeals to resolve this split which goes to oral arguments next week. 

Questions Presented 

In Counterman v. Colorado, appellant Billy Counterman is asking the U.S. Supreme Court the following question

“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.”

The question narrows in on two different approaches courts have taken to interpret the Elonis decision with some courts, including the Colorado Court of Appeals, holding that if a reasonable observer would find messages to be threatening, that shows intent. Other courts have required prosecutors to show the speaker intended the message to be a threat. 

Case Background

In July 2021, a division of the Colorado Court of Appeals upheld Counterman’s convictions for stalking (serious emotional distress). An Arapahoe County jury in 2017 found him guilty of the offense based on a series of Facebook messages he’d sent to Denver musician Coles Whalen from 2014 through 2016. 

According to court records, Whalen believed the messages implied Counterman had been watching her and some (“Staying in cyber life is going to kill you. Come out for coffee. You have my number” and “You’re not being good for human relations. Die. Don’t need you.”) made her feel like she was in danger. The musician said she blocked multiple accounts but would get the same messages from newly created ones. Whalen canceled several planned performances out of fear of Counterman, according to court records. 

After his conviction, Counterman’s attorneys appealed. At the Colorado Court of Appeals, they argued none of the messages included statements of purpose or intent to cause injury given their context of having been sent over social media when Whalen had a public page and Counterman didn’t actually know if she was reading the messages. His attorneys argued the messages, therefore, didn’t rise to true threats. 

The unanimous panel of the Court of Appeals disagreed. In an opinion written by Judge Craig Welling, joined by Chief Judge Gilbert Román and Judge Jaclyn Brown, the court applied the reasonable observer standard to find the statements were not protected. 

The Colorado Supreme Court declined to hear the case in April 2022. 

What People Are Saying

Ahead of oral arguments, a number of groups have filed amicus briefs in the case, with many pointing out its potential implications for social media communications. 

Two groups representing the interests of journalists, The Reporters Committee for Freedom of the Press and the Electronic Frontier Foundation and Student Press Law Center, urged the Supreme Court in amicus briefs to overturn the Colorado Court of Appeals’ holding. The organizations warned that using a reasonable observer and not a mens rea test could open reporters and journalists up to criminal charges for content that would otherwise be protected under the First Amendment. 

A number of other organizations expressed concern that upholding the reasonable observer standard could create too large of a carve-out for true threats. In a brief by the Americans for Civil Liberties Union joined by a number of other organizations, the groups expressed concern that “ill-considered speech online,” especially by younger generations and on social media, that uses “abbreviated and idiosyncratic language” could be misinterpreted as a threat despite its context and intent. The Cato Institute also argued in an amicus brief that upholding the Colorado Court of Appeals ruling would be concerning “given that the Nation is undergoing a communications revolution, driven by unprecedented new forms of online expression” and could open online communications up to criminal liability. The Foundation for Individual Rights and Expression and The Rutherford Institute expressed similar concerns in their briefs. 

Human Rights for Kids filed a brief expressing concern that upholding the Court of Appeals ruling could especially impact children “who, because of their under-developed brains and impetuous nature, are more likely to engage in speech that a reasonable person would find offensive, abrasive or threatening.” 

A number of other organizations and individuals filed briefs urging the court to uphold the reasonable observer test. 

Groups representing the victims of violence (including Legal Momentum, the National Crime Victim Law Institute and AEquitas, The National Family Violence Law Center and The Domestic Violence Legal Empowerment and Appeals Project and The Lawyers’ Committee for Civil Rights Under Law and The National Women’s Law Center) filed amicus briefs expressing concern that narrowing the standard of a true threat could hinder legal options victims of crimes might seek including civil protection orders. 

Whalen also filed a brief in support of the lower court and expressed that the messages made her fear for her life and harmed her well-being. 

A group of 25 states and Washington D.C. also filed in support of upholding the ruling, explaining that an objective standard is more appropriate in cases when the government has an interest in protecting residents from true threats while balancing freedom of speech. The Criminal Justice Legal Foundation expressed a similar view that requiring subjective intent would hinder prosecutions and not serve the public interest. 

Two groups of law professors also filed in support of Colorado expressing their views that freedom of speech and the First Amendment would not be significantly harmed by upholding the reasonable observer standard in cases of stalking.

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