Legal Update September/October 2023

Man with curly hair wearing sunglasses.

Larry E. Holtz, Esq.

True Threats of Violence

True threats of violence are “outside the bounds of First Amendment protection and punishable as crimes.” Counterman v. Colorado, 600 US ___ (2023). Historically, “true threats” of violence have been an unprotected category of communications. See Virginia v. Black, 538 US 343, 359, 123 S.Ct. 1536 (2003).

The “true” in that term distinguishes what is at issue from jests, “hyperbole” or other statements which, when taken in context, do not convey a real possibility that violence will follow (say, “I am going to kill you for showing up late”). … True threats are “serious expression[s]” conveying that a speaker means to “commit an act of unlawful violence.”

In Counterman, the United States Supreme Court addressed the question whether the First Amendment additionally requires proof that the defendant had some subjective understanding of the threatening nature of his statements. The Court held 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.”

From 2014 to 2016, Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician.

The two had never met and C. W. never responded. In fact, she repeatedly blocked Counterman. But, each time, he created a new Facebook account and resumed his contacts. Some of his messages were utterly prosaic (“Good morning sweetheart”; “I am going to the store would you like anything?”) – except that they were coming from a total stranger. … Others suggested that Counterman might be surveilling C. W. He asked “[w]as that you in the white Jeep?”; referenced “[a] fine display with your partner”; and noted “a couple [of] physical sightings.” … And, most critically, a number expressed anger at C. W. and envisaged harm befalling her: “F–k off permanently.” … “Staying in cyber life is going to kill you.” … “You’re not being good for human relations. Die.”

The messages put C. W. in fear; she believed that Counterman was threatening her life; was very fearful that he was following her; and was afraid she would get hurt. She had trouble sleeping; suffered from severe anxiety; she stopped walking alone; and canceled some of her performances, though doing so caused her financial harm.

Ultimately, C. W. contacted the authorities and Colorado charged Counterman under a statute making it unlawful to repeatedly “make [ ] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.” Colo. Rev. Stat. §18-3-602(1)(c). Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and, therefore, could not form the basis of a criminal prosecution.

In this appeal, the first dispute was whether the First Amendment demands that the State in a true-threats case prove that the defendant was aware in some way of the threatening nature of his communications. Colorado argued that there is no such requirement. The United States Supreme Court disagreed, holding that “the State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.”

The second issue focused on “what precise mens rea standard suffices for the First Amendment purpose at issue. … [The Court held] that a recklessness standard is enough.” Said the Court, “Given that a subjective standard here shields speech not independently entitled to protection – and indeed posing real dangers – we do not require that the State prove the defendant had any more specific intent to threaten the victim.”

In this case, Counterman was prosecuted in accordance with an objective standard. “The State had to show only that a reasonable person would understand his statements as threats. It did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment.” Accordingly, the Court remanded the case for further proceedings.

Larry E. Holtz has served as a Detective Sergeant with the Atlantic City, New Jersey, Police Department; a Deputy Attorney General for the state of New Jersey, and an Assistant County Prosecutor. Presently, Mr. Holtz is the Managing Editor of Blue360° Media, the largest US provider of legal information which is solely focused on serving law enforcement.

Mr. Holtz is a certified police trainer and teaches on a regular basis. He is a member of the bar in New Jersey, Pennsylvania and the District of Columbia and is admitted to practice before the federal bar in the District of New Jersey and the Third Circuit.