Are You Threatening Me? Counterman v. Colorado May Give Us a New Test to Find Out.

JEREMY CONNELL—First Amendment protection of speech has limits, but those limits are not always well-defined. The Supreme Court will soon hear arguments on Counterman v. Colorado, and the ruling may settle a question that currently divides both state and federal courts: What is necessary for speech to constitute a “true threat”?

Counterman concerns a series of Facebook messages the defendant, Billy Counterman, sent to Colorado musician Coles Whalen over a period of two years. Whalen did not know Counterman and repeatedly blocked his accounts, but Counterman created new accounts and sent more messages. Counterman was eventually convicted under a Colorado statute which prohibits “knowingly” and “repeatedly” making “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.” Counterman argued that his speech did not rise to the level of a “true threat” and therefore, the criminalization of his speech violated the First Amendment.

When a court determines the constitutionality of a law that regulates speech, it first makes a threshold distinction as to whether the law is “content-neutral” or “content-based.” Content-neutral restrictions place conditions on speech without regard to the speech’s substance and are reviewed using intermediate scrutiny. Restrictions that are content-based, however, regulate speech based on the message it conveys. Such restrictions trigger the highest level of scrutiny from courts: strict scrutiny. Under strict scrutiny, the government can rebut a presumption of unconstitutionality only if the regulation furthers a compelling government interest, is narrowly tailored to achieve that interest and is the least-restrictive means of achieving that purpose.

One type of content restriction that can satisfy strict scrutiny is the regulation of “true threats.” But while criminalization of true threats can be constitutional, state courts and federal circuits are currently divided over what is necessary for speech to qualify as a true threat. These divides make the First Amendment landscape particularly complicated in an age where communication increasingly happens in digital spaces and senders’ messages often cross state lines. In April, the Court will hear arguments in Counterman, and the ruling may resolve some of the disparity.

The term “true threat” originated in the case of Watts v. United States. The defendant in Watts attended a rally in 1966 where he discussed his potential to be drafted into the Vietnam War. He stated, “[i]f they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” Watts was subsequently convicted under a statute that criminalized “knowingly and willfully” making a “threat against the President.” The Supreme Court reversed his conviction and held that what “is a threat” must be distinguished from what “is constitutionally protected speech.” The Court found that Watts’s speech was “political hyperbole” and was not a true threat. However, the Court did not articulate a clear standard for what does constitute a true threat, though it discussed factors such as the context of the statement and the reaction of the speech’s recipients.

In 2003, the Court held that Virginia was permitted to outlaw cross burnings done “with the intent to intimidate” in Virginia v. Black. The defendants in Black were convicted after burning a cross at a Klan rally; however, the Virginia Supreme Court vacated the convictions and found the statute they were brought under unconstitutional. On review, the Supreme Court stated that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence” and held that cross burning done with the intent to intimidate constitutes a true threat. However, the Court nonetheless found the Virginia statute unconstitutional because its accompanying jury instruction violated the overbreadth doctrine by presuming that any public cross burning was done with intent to intimidate.

Counterman highlights the resulting circuit split after Black over whether, in order to show a true threat, the government must prove the speaker had the subjective intent to threaten. Courts are currently divided; the Ninth and Tenth Circuits hold that, under Black, subjective intent is a necessary element of establishing that speech qualifies as a true threat. The other nine circuits, however, use an “objective” test. Under objective tests, as long as the speaker intends to convey the message, he does not need to intend the speech as a threat; if a reasonable person would perceive the speech as threatening, or if the “totality of the circumstances” indicate speech constitutes a threat, then speech can qualify as a true threat even without subjective intent. The petitioner’s brief in Counterman argues that purely “objective” tests are ill-suited for Internet communication, where recipients may lack the “shared frame of background context” that accompanies oral communication.

In addition to the federal circuit splits, there are nine states in which state constitutional law and federal circuit law are in conflict on the issue. Those states’ high courts—including Colorado’s—use a test in conflict with their federal circuit. This means that currently, whether a person’s speech can qualify as a true threat in those states depends on whether the case is brought in federal or state court. Counterman’s brief argues that such splits are “particularly problematic” in the First Amendment context because “speakers’ constitutional rights depend on the courthouse in which they are prosecuted.” This is true of Counterman—the Tenth Circuit requires subjective intent, but the Colorado statute under which Counterman was convicted does not. As it stands, messages sent over the Internet can be subjected to a variety of different tests depending on what state the recipient is in and whether any potential lawsuit is brought in state or federal court. The Court’s ruling in Counterman has the potential to create a bright-line rule that will remove widespread confusion, settle a circuit split, and create a more ubiquitous standard for applying the First Amendment in an age where technology allows speech to instantly flow across state lines at the tap of a finger.