In today’s day and age, we often hear people throw around the phrase “my rights,” “freedom of speech,” and the “First Amendment” when making any type of statement, whether that be political propaganda with false information, aggressive Facebook statuses and social media posts, or offensive comments made by the various “Karens” of the world to those occupying supermarkets, stores, or simply the streets. With these types of speech seeming to become more and more prevalent in the past few years with the development of social media platforms, people have begun to wonder: Does the First Amendment really protect all of this? But as is true with any type of legal question: it depends.
The First Amendment of the United States Constitution states the following:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[1]
This language would seem to suggest that an individual’s speech is fully protected by the First Amendment. However, there are various areas of speech that the First Amendment does not protect such as incitement and true threats.[2] True threats are statements where a “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”[3] The ban on true threats is meant to protect individuals from the fear of violence itself, the disruption fear generates, and from the potential that the threats of violence will actually take place.[4]
Just recently, in Counterman v. Colorado,the Supreme Court of the United States vacated and remanded a Colorado man’s conviction for stalking after Billy Counterman sent numerous threatening Facebook messages to a local musician and singer, Coles Whalen, wishing harm befall her despite being blocked numerous times on the social media platform.[5] Ms. Whalen became fearful for her life and reported Mr. Counterman to the local authorities. Mr. Counterman was eventually found guilty and convicted of stalking despite Mr. Counterman filing a motion to dismiss the charge on First Amendment grounds arguing that his messages to Ms. Whalen were not “true threats.” Mr. Counterman’s motion was denied, and Mr. Counterman’s conviction was affirmed by the Colorado Court of Appeals. The Supreme Court of Colorado denied review, but the Supreme Court of the United States granted certiorari.
Using an objective standard, the Colorado trial court ruled that a “reasonable person” would find the statements made by Mr. Counterman as threatening and therefore, could be considered true threats. With a majority opinion authored by Justice Kagan, the Supreme Court of the United States found that the government incorrectly used an objective standard in Mr. Counterman’s case as Mr. Counterman’s understanding of the threatening nature of his statements sent to Ms. Whalen was not considered.
The Supreme Court held that in order for a statement to be considered a “true threat” and not protected by the First Amendment, the government must prove that the Defendant had some subjective understanding of the threatening nature of his statements.[6] However, the government only has to prove the defendant acted recklessly when sending these threats in order to be in violation of the First Amendment. Essentially, the government just has to be able to show that the individual making the threats is aware that others could regard such statements as threatening violence yet proceeds to deliver the threat anyways. [7]
With this new approach, the Supreme Court decided that a subjective mental state requirement needs to be applied, in this case recklessness, in order to balance the fine line between allowing individuals to engage in free speech while creating protections against genuine threats.
So next time you see a threat on Facebook, put your lawyer hat on, apply the new Counterman standard created by the Supreme Court, and determine if such a statement would be a true threat and true crime not protected by the First Amendment.
[1] U.S. Const. amend. I.
[2] See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969); Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam); Virginia v. Black, 538 U.S. 343, 359 (2003).
[3] Virginia v. Black, 538 U.S. 343, 359 (2003).
[4] Id.
[5] Counterman v. Colorado, 143 S. Ct. 2106 (2023)
[6] Id.
[7] Id.


Jennifer Recktenwald




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