SUPREME COURT OF THE UNITED STATES
No. 22–138
BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO
[June 27, 2023]
Justice Barrett, with whom Justice Thomas joins, dissenting.
Billy Counterman was convicted under a Colorado law that prohibits true threats. As everyone agrees, the statute requires that the speaker understand the meaning of his words. Ante, at 4, n. 1. The question is what more the First Amendment requires. Colorado maintains that an objective standard is enough—that is, the government must show that a reasonable person would regard the statement as a threat of violence. Counterman, however, argues that the First Amendment requires a subjective test—that is, the speaker himself must intend or know the threatening nature of the statement.
It should be easy to choose between these positions. True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard. Nonetheless, the Court adopts a subjective standard, though not quite the one advanced by Counterman. The Court holds that speakers must recklessly disregard the threatening nature of their speech to lose constitutional protection. Because this unjustifiably grants true threats preferential treatment, I respectfully dissent.
I
Since the founding, the First Amendment has allowed the government to regulate certain “areas of speech” “because of their constitutionally proscribable content.” R. A. V. v. St. Paul, 505 U. S. 377, 382–383 (1992) (emphasis deleted). This includes true threats, which are “serious expression[s] of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U. S. 343, 359 (2003); see also R. A. V., 505 U. S., at 388 (“[T]hreats of violence are outside the First Amendment”). True threats carry little value and impose great cost. See Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942) (“[A]ny benefit that may be derived from [true threats] is clearly outweighed by the social interest in order and morality”). “[B]y their very utterance,” true threats “inflict injury.” Ibid. They provoke “the fear of violence,” create “disruption,” give rise to “the possibility that the threatened violence will occur”—and the list goes on. Black, 538 U. S., at 360 (internal quotation marks omitted).[1]
The nature of a true threat points to an objective test for determining the scope of First Amendment protection: Neither its “social value” nor its potential for “injury” depends on the speaker’s subjective intent. Chaplinsky, 315 U. S., at 572. They can relate, of course—a speaker who does not intend to threaten is less likely to utter a statement that could be taken that way. But the Constitution ultimately declines to protect true threats for objective reasons, not subjective ones. So an objective test “complements the explanation for excluding threats of violence from First Amendment protection in the first place.” United States v. Jeffries, 692 F. 3d 473, 480 (CA6 2012).
II
The Court agrees that “[t]he existence of a threat depends not on ‘the mental state of the author,’ but on ‘what the statement conveys’ to the person on the other end.” Ante, at 6. And it acknowledges that “[w]hen the statement is understood as a true threat, all the harms that have long made threats unprotected naturally follow.” Ibid. Nonetheless, the Court holds Colorado’s statute unconstitutional. Why? Because the Court installs a prophylactic buffer zone to avoid chilling protected speech—a buffer zone that protects true threats unless the speaker “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” Ante, at 1, 4–5. That reasoning is flawed.
A
The Court’s first error is awarding true threats “pride of place among unprotected speech.” Elonis v. United States, 575 U. S. 723, 767 (2015) (Thomas, J., dissenting). We have held that nearly every category of unprotected speech may be regulated using an objective test. In concluding otherwise, the Court neglects certain cases and misreads others.
Start with fighting words—a category of unprotected speech that the Court skips past. Fighting words are “personally abusive epithets” that are “inherently likely to provoke violent reaction.” Cohen v. California, 403 U. S. 15, 20 (1971). Under our precedent, legislatures may regulate fighting words even when the speaker does not intend to provoke the listener (or does not recklessly disregard that possibility). Chaplinsky, 315 U. S., at 572–573 (rejecting First Amendment challenge to a state law punishing “fighting words” according to a reasonable-person standard); Cantwell v. Connecticut, 310 U. S. 296, 309–310 (1940) (statements unprotected when they are “likely to provoke violence and disturbance of good order, even though no such eventuality be intended”). Instead, we ask only whether “the ordinary citizen,” using her “common knowledge,” would reasonably understand the statement as a “direct personal insult.” Cohen, 403 U. S., at 20; see also Texas v. Johnson, 491 U. S. 397, 409 (1989).
The Court similarly overlooks the category of “false, deceptive, or misleading” commercial speech. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 638 (1985); In re R. M. J., 455 U. S. 191, 203 (1982) (“Truthful advertising … is entitled to the protections of the First Amendment,” but “[m]isleading advertising may be prohibited entirely”); Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. 136, 142 (1994) (“[F]alse, deceptive, or misleading commercial speech may be banned”). Here, too, our cases suggest that First Amendment protection depends on objective falsity rather than the speaker’s intention. See In re R. M. J., 455 U. S., at 202 (“[R]egulation—and imposition of discipline—are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive” (emphasis added)); see also Milavetz, Gallop & Milavetz, P. A. v. United States, 559 U. S. 229, 250–253 (2010). Thus, the government is “free to prevent the dissemination of commercial speech that is false, deceptive, or misleading,” without regard to whether the speaker knew that the recipient would be deceived or misled. Zauderer, 471 U. S., at 638.
Or take obscenity, which we have long held is “not protected by the freedoms of speech and press.” Roth v. United States, 354 U. S. 476, 481 (1957). Speech qualifies as scene if the “ ‘average person, applying contemporary community standards,’ ” would conclude that “the work, taken as a whole, appeals to the prurient interest.” Miller v. California, 413 U. S. 15, 24 (1973). The jury must also make an objective judgment about whether the speech “depicts or describes” sexual conduct “in a patently offensive way,” and whether it “lacks serious literary, artistic, political, or scientific value.” Ibid. The speaker’s “ ‘belief as to the obscenity or non-obscenity of the material is irrelevant.’ ” Hamling v. United States, 418 U. S. 87, 120–121 (1974). So long as the defendant has “knowledge of the contents of the materials,” her speech may be constitutionally regulated. Id., at 123. An objective, reasonable-person standard applies.
In an effort to bolster its position, the Court floats a different standard for obscenity laws, asserting that “the First Amendment demands proof of a defendant’s mindset to make out an obscenity case.” Ante, at 8. By “mindset,” the Court apparently means that the defendant must have some awareness that an average person would consider the materials obscene. But the Court draws this conclusion from cases rejecting a strict liability standard—for example, we have held that the proprietor of a bookstore cannot be liable for possessing an obscene book unless he knew what was in it. Smith v. California, 361 U. S. 147, 149, 155 (1959); Mishkin v. New York, 383 U. S. 502, 510–512 (1966); see also Ginsberg v. New York, 390 U. S. 629, 643–644 (1968).[2] Knowing what the material depicts is not the same as knowing how the average person would react to it—just as there is an important difference between Counterman’s knowledge of what his words meant and his knowledge of how they would be perceived. Though the Court conflates the two, our obscenity cases have repeatedly refused to require the latter as a matter of constitutional law. Hamling, 418 U. S., at 120–123; Rosen v. United States, 161 U. S. 29, 41–42 (1896). So obscenity doctrine does not help Counterman.
The Court leans hardest on defamation law, but its argument depends on a single, cherry-picked strand of the doctrine. Yes, New York Times Co. v. Sullivan requires public figures and public officials to show “actual malice” on a defamation claim, and we have defined “actual malice” as “knowledge that [the statement] was false” or “reckless disregard of whether it was false or not.” 376 U. S. 254, 279–280 (1964). But that is not the full story. A private person need only satisfy an objective standard to recover actual damages for defamation. Gertz v. Robert Welch, Inc., 418 U. S. 323, 347–350 (1974). And if the defamatory speech does not involve a matter of public concern, she may recover punitive damages with the same showing. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 760–761 (1985) (plurality opinion). We have justified that distinction on the ground that public-figure defamation claims may deter “would-be critics of official conduct … from voicing their criticism,” which would “dampe[n] the vigor and limit the variety of public debate.” Sullivan, 376 U. S., at 279. Not only that, but “the state interest in protecting” public figures is weaker, since they tend to “enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements.” Gertz, 418 U. S., at 344. So, despite what the Court says, Sullivan does not stand for the broad proposition that the First Amendment “demand[s] a subjective mental-state requirement.” Ante, at 6. Instead, it simply raises the bar for borderline unprotected speech with high social value (because of its proximity to public discourse) and low potential for injury (because public figures can engage in counterspeech).
Sullivan’s rationale does not justify a heightened mens rea for true threats. Because true threats are not typically proximate to debate on matters of public concern, the Court’s newly erected buffer zone does not serve the end of protecting heated political commentary. Nor can public figures use counterspeech in the public square to protect themselves from serious threats of physical violence. And perversely, private individuals now have less protection from true threats than from defamation—even though they presumably value their lives more than their reputations. See Gertz, 418 U. S., at 347–350. The Court has therefore extended Sullivan in a way that makes no sense on Sullivan’s own terms.
I will give the Court this much: Speakers must specifically intend to incite violence before they lose First Amendment protection. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (defining incitement as “advocacy … directed to inciting or producing imminent lawless action and likely to incite or produce such action”); see also Hess v. Indiana, 414 U. S. 105, 108–109 (1973) (per curiam). Once more, however, our precedent itself explains the difference. Incitement, as a form of “advocacy,” often arises in the political arena. See Brandenburg, 395 U. S., at 447 (Ku Klux Klan rally held to plan a “ ‘marc[h] on Congress’ ”); Hess, 414 U. S., at 106 (antiwar demonstration); Abrams v. United States, 250 U. S. 616, 620 (1919) (pamphlets about the President’s “ ‘shameful, cowardly silence about the intervention in Russia’ ”). A specific intent requirement helps draw the line between incitement and “political rhetoric lying at the core of the First Amendment.” NAACP v. Claiborne Hardware Co., 458 U. S. 886, 926–927 (1982). The Court does not contend that targeted threats and political commentary share a similarly close relationship.
In sum, our First Amendment precedent does not set a “baseline ban on an objective standard.” Ante, at 10. Precedent does more than allow an objective test for true threats; on balance, it affirmatively supports one.
B
The Court’s analysis also gives short shrift to how an objective test works in practice. Two key features of true threats already guard against the risk of silencing protected speech. Thus, there is no need to go further and adopt the Court’s heightened standard.
First, only a very narrow class of statements satisfies the definition of a true threat. To make a true threat, the speaker must express “an intent to commit an act of unlawful violence.” Black, 538 U. S., at 359 (emphasis added). Speech that is merely “offensive,” “ ‘poorly chosen,’ ” or “unpopular” does not qualify. Brief for Petitioner 31, 36, 42. The statement must also threaten violence “to a particular individual or group of individuals”—not just in general. Black, 538 U. S., at 359. These tight guardrails distinguish true threats from public-figure defamation, the model for the Court’s rule. While defamatory statements can cover an infinite number of topics, true threats target one: unlawful violence.
Second, the statement must be deemed threatening by a reasonable listener who is familiar with the “entire factual context” in which the statement occurs. State v. Taveras, 342 Conn. 563, 572, 271 A. 3d 123, 129 (2022). This inquiry captures (among other things) the speaker’s tone, the audience, the medium for the communication, and the broader exchange in which the statement occurs.[3] Each consideration helps weed out protected speech from true threats.
Our decision in Black illustrates the point. There, the Court considered a Virginia law that prohibited cross burning “ ‘with the intent of intimidating any person or group of persons.’ ” 538 U. S., at 348. Notably, the statute included a presumption: “ ‘Any such burning of a cross shall be prima facie evidence of an intent to intimidate.’ ” Ibid. After three men were convicted under the statute, they challenged it as facially unconstitutional. We upheld the general prohibition on cross burning, concluding that the First Amendment allows the government to ban “a particular type of threat.” Id., at 362–363. A plurality then went on to address the statutory presumption. While cross burning “may mean that a person is engaging in constitutionally proscribable intimidation,” the plurality reasoned, the act is not monolithic. Id., at 365. Cross burning could be directed “at an individual” or “at a group of like-minded believers”; it could be done “on a neighbor’s lawn” or “at a public rally”; it could be done with the property owner’s “permission” or without it. Id., at 366. The presumption “blur[red] the line” between these different situations and “ignore[d] all of the contextual factors that are necessary to decide whether a particular cross burning” was covered by the statute or not.[4] Id., at 365, 367. Thus, the presumption was unconstitutionally overbroad.
The Black plurality’s reasoning can be boiled down to the following insight: When context is ignored, true threats cannot be reliably distinguished from protected speech. The reverse also holds: When context is properly considered, constitutional concerns abate. See, e.g., Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (concluding that a statement was “political hyperbole” instead of a true threat based on “context,” “the expressly conditional nature of the statement,” and the “reaction of the listeners”).
One more point: Many States have long had statutes like Colorado’s on the books. See Brief for Illinois et al. as Amici Curiae 16–17. Before we took this case, the vast majority of Courts of Appeals and state high courts had upheld these statutes as constitutional. So objective tests are effectively the status quo today, yet Counterman still struggles to identify past prosecutions that came close to infringing on protected speech. Tr. of Oral Arg. 28–30. The silence is telling.
C
So is the silence in the historical record. Since 1791, true threats have been excluded from the “speech” protected by the First Amendment. R. A. V., 505 U. S., at 382–383, 388. If Counterman could show that a subjective requirement has been inherent in the definition of “true threat” since the founding, he would have a compelling case. But Counterman cannot make that showing.
For starters, he produces no evidence directly addressing the meaning of the First Amendment—nothing from state ratifying conventions, political commentary, or even early debates about efforts to regulate threats in ways that might threaten speech. That is not surprising at the federal level, because the Federal Government did not prohibit threats until the early 20th century. Elonis, 575 U. S., at 760 (Thomas, J., dissenting). Some States, however, both regulated threats and guaranteed the right to free speech in their own constitutions. Id., at 760–761. Yet even at the state level, there was apparently no discussion about the implications of these statutes for the constitutional right.
That void notwithstanding, the state threat statutes are the evidence on which Counterman seizes. He argues that they imposed a subjective mens rea, demonstrating that the founding generation thought that threats could be punished on no less. But as Justice Thomas has already discussed in detail, this is incorrect. See id., at 760–765. Rather than a subjective mens rea, these statutes used an objective standard resembling Colorado’s.
Even if they did require a heightened mens rea, though, these statutes would not carry the day for Counterman. The enactment of a statute against the backdrop of a free speech guarantee tends to show that the legislature thought the statute consistent with that guarantee. Thus, if the question were whether such statutes violated the First Amendment, their existence would be evidence to the contrary. But the question here is whether a subjective intent requirement is the constitutional floor. And because the legislature is always free to exceed the floor, the enactment of legislation does not necessarily reflect the legislature’s view of the constitutional minimum.
At the end of the day, then, the best historical case for Counterman does not add up to much. He is plainly not asking the Court to enforce a historically sanctioned rule, but rather to fashion a new one.
D
Even if a subjective test had a historical pedigree, the Court’s chosen standard of recklessness certainly does not. Where does recklessness come from? It was not raised by the parties. Only the Solicitor General noted this possibility—and briefly at that. Brief for United States as Amicus Curiae 28–31. Nor did the courts below address recklessness; indeed, very few courts (of the many that have taken up the question) have settled on recklessness as the constitutional floor for true threats. See, e.g., State v. Mrozinski, 971 N. W. 2d 233, 243–245 (Minn. 2022); In re J. J. M., 265 A. 3d 246, 269–270 (Pa. 2021). Still, the Court adopts recklessness as “the right path forward.” Ante, at 11. Its rationale is, at best, unclear.
The Court begins by acknowledging the “ ‘competing value[s]’ ” of “free expression” on one hand, and “profound harms … to both individuals and society” on the other. Ante, at 11–12. But why do these considerations point to recklessness? A knowledge or purpose standard would allow more free expression, so maybe we should go higher. See ante, at 16 (Sotomayor, J., concurring in part and concurring in judgment) (“chilling concerns only further buttress the conclusion that true threats should be limited to intentionally threatening speech”). An objective standard would cause less harm to victims, so perhaps lower is better. The optimal balance strikes me as a question best left to the legislature, which could calibrate the mens rea to the circumstance—for example, higher for the criminal context and lower for the civil. See Brief for Illinois et al. as Amici Curiae 28–30 (States “have a range of policy reasons for using subjective standards for penalizing threats of violence” and many “choose to require proof of a speaker’s subjective mental state” in some situations but not others).
Nor does our First Amendment precedent buttress the Court’s preferred standard. A recklessness requirement currently applies only to public-figure defamation claims. Incitement to violence calls for more. Fighting words, private-figure defamation, false commercial speech, and obscenity require less. I fail to see why, of all these categories of unprotected speech, public-figure defamation is the best analog for true threats. The reality is that recklessness is not grounded in law, but in a Goldilocks judgment: Recklessness is not too much, not too little, but instead “just right.”
III
Some may find Colorado’s statute harsh, and the Court’s decision seems driven in no small part by the heavy hammer of criminal punishment. See ante, at 12; ante, at 14–15, 20–21 (opinion of Sotomayor, J.). While an objective test is “a familiar feature of civil liability in tort law,” the “ ‘conventional requirement for criminal conduct’ ” is “ ‘awareness of some wrongdoing.’ ” Elonis, 575 U. S., at 737–738. In keeping with this convention, we generally presume that “federal criminal statutes that are silent on the required mental state” nonetheless impose the “mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” Id., at 736 (internal quotation marks omitted). That is why we rejected an objective standard for the federal threat prohibition, 18 U. S. C. §875(c). 575 U. S., at 737–739. It is “the threatening nature of the communication” that “makes the conduct ‘wrongful’ ”; thus, the statute is best interpreted to require that the defendant be aware of the impact of his speech. Id., at 737.
But this case is about the scope of the First Amendment, not the interpretation of a criminal statute. Accordingly, the Court’s holding affects the civil consequences for true threats just as much as it restricts criminal liability. And the civil context underscores the danger of adopting a Sullivan-style buffer zone for true threats.
Consider, for example, threat victims who seek restraining orders to protect themselves from their harassers. See, e.g., United States v. Elonis, 841 F. 3d 589, 593 (CA3 2016) (defendant’s wife sought a restraining order after he wrote on Facebook, “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts”). Civil orders can also keep individuals away from particular geographic areas. Imagine someone who threatens to bomb an airport, State v. Johnston, 156 Wash. 2d 355, 358–359, 127 P. 3d 707, 708–709 (2006), or “shoot up [a] courthous[e],” State v. Draskovich, 2017 S. D. 76, ¶3, 904 N. W. 2d 759, 761. The speaker might well end up barred from the location in question—for good reason. Yet after today, such orders cannot be obtained without proof—not necessarily easy to secure—that the person who issued the threat anticipated that it would elicit fear. See Tr. of Oral Arg. 92–93.
The government can also opt to counteract true threats by means of civil enforcement actions. For instance, 18 U. S. C. §248 prohibits “threat[s] of force” against any person “obtaining or providing reproductive health services” or “seeking to exercise the First Amendment right of religious freedom at a place of religious worship.” The statute imposes a range of civil penalties, and it allows enforcement suits by both private persons and government officials. See, e.g., United States v. Dillard, 795 F. 3d 1191, 1196–1197 (CA10 2015) (Government brought §248 action after defendant warned a health provider, “[y]ou will be checking under your car everyday—because maybe today is the day someone places an explosive under it”); McCullen v. Coakley, 573 U. S. 464, 491 (2014) (noting that several States have similar laws). After today, these civil enforcement actions face a higher constitutional hurdle.
In addition, employers and school administrators often discipline individuals who make true threats. Consider the student who was expelled after “draft[ing] two violent, misogynic, and obscenity-laden rants expressing a desire to molest, rape, and murder” his ex-girlfriend. Doe v. Pulaski Cty. Special School Dist., 306 F. 3d 616, 619 (CA8 2002) (en banc). Or the one who was suspended after “ ‘talking about taking a gun to school’ to ‘shoot everyone he hates.’ ” D. J. M. v. Hannibal Public School Dist. No. 60, 647 F. 3d 754, 758 (CA8 2011); Lovell v. Poway Unified School District, 90 F. 3d 367, 369, 372–373 (CA9 1996) (similar); Haughwout v. Tordenti, 332 Conn. 559, 561–562, 211 A. 3d 1, 3–4 (2019) (similar). True threats can also be expressed by a parent, a teacher, or an employee in another context altogether. See, e.g., Taveras, 342 Conn., at 567–569, 578, 271 A. 3d, at 126–128, 133 (parent); Smith v. New York City Dept. of Ed., 109 App. Div. 3d 701, 702–703, 972 N. Y. S. 2d 221, 222 (2013) (teacher); Diggs v. St. Louis, 613 S. W. 3d 858, 862, 864 (Mo. App. 2020) (correctional officer).
Barring some reason why the speech receives lesser constitutional protection, e.g., Mahanoy Area School Dist. v. B. L., 594 U. S. ___, ___–___ (2021) (slip op., at 4–5), the Court’s new rule applies to all of these situations. That can make all the difference in some cases. A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her. The Court’s decision thus sweeps much further than it lets on. *** The bottom line is this: Counterman communicated true threats, which, “everyone agrees, lie outside the bounds of the First Amendment’s protection.” Ante, at 4. He knew what the words meant. Those threats caused the victim to fear for her life, and they “upended her daily existence.” Ante, at 2. Nonetheless, the Court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result. I respectfully dissent.
- ↑ Indeed, the Colorado Legislature considered these very harms when it enacted the statute at issue here. The statutory findings explain that stalking, harassment, and threats have “an immediate and long-lasting impact on quality of life as well as risks to security and safety of the victim and persons close to the victim.” Colo. Rev. Stat. §§18–3–601(1)(f), 18–3–602(1) (2022). So the legislature passed the statute to “encourag[e] and authoriz[e] effective intervention” before the covered conduct could “escalate into behavior that has even more serious consequences.” §18–3–601(2).
- ↑ The Court also cites Elonis v. United States, ante, at 8, 9, n. 4, which Counterman argues puts a “gloss” on obscenity doctrine, Tr. of Oral Arg. 6–7. While Elonis briefly discusses the necessary mens rea for a conviction under a federal obscenity statute, it does so only in dicta. 575 U. S. 723, 739–740 (2015). Elonis does not alter the doctrinal framework for assessing the constitutionality of obscenity laws: That case involves true threats, not obscenity, and it interprets a federal statute, not the Constitution.
- ↑ Colorado’s test provides a good example. Juries must apply the following nonexhaustive factors to determine whether a statement is a true threat: “(1) the statement’s role in a broader exchange, if any, including surrounding events; (2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; (3) the manner in which the statement was conveyed (e.g., anonymously or not, privately or publicly); (4) the relationship between the speaker and recipient(s); and (5) the subjective reaction of the statement’s intended or foreseeable recipient(s).” People in the Interest of R. D., 464 P. 3d 717, 721–722 (Colo. 2020).
- ↑ As Justice Sotomayor emphasizes, ante, at 10, n. 4, the plurality said that context informs “whether a particular cross burning is intended to intimidate,” 538 U. S., at 367 (emphasis added). But this was a reference to the statutory requirements for a conviction, not the constitutional requirements—the Virginia statute covered only threats made “ ‘with the intent of intimidating any person or group of persons.’ ” Id., at 348. At no point did the Court hold that the First Amendment demands specific intent; on the contrary, it recognized that a statement made “with the intent of placing the victim in fear of bodily harm or death” is “a type of true threat.” Id., at 360 (emphasis added).