Supreme Court Clarifies When Speech Becomes ‘True Threat’ Not Protected By First Amendment

The Supreme Court ruled 7-2 Tuesday that a speaker must have “some subjective understanding of his statements’ threatening nature” before he is accused of making a “true threat,” a category of speech not protected by the First Amendment.

“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,” Justice Elena Kagan wrote in the majority opinion, joined by Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson. “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.”

Justices Sonia Sotomayor and Neil Gorsuch concurred in judgement.

The case, Counterman v. Colorado, centers on Billy Raymond Counterman, who was sentenced to four and a half years in prison for repeatedly sending a local musician Facebook messages she found threatening. While the Colorado Court of Appeals determined a “reasonable person” would find Counterman’s statements threatening, Counterman said that was not his intent.