Counterman v. Colorado

Brief of Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Colorado, Abrams Institute for Freedom of Expression, National Association of Criminal Defense Lawyers, and National Coalition Against Censorship

Brief filed: 03/01/2023


Counterman v. Colorado

United States Supreme Court; Case No. 22-138


Counterman was charged with stalking under Colorado law - section 18-3-602(1)(c). Prior to trial, Counterman moved to dismiss the indictment on the ground that his messages were protected under the First Amendment. The trial court rejected his motion, holding that Counterman’s statements were objectively threatening and therefore fell under the “true threats” exception to the First Amendment. The trial court also granted the State’s motion to exclude evidence related to Counterman’s mental state for lack of relevance. “The appellate court held that Counterman’s messages were true threats unprotected by the First Amendment—even though the jury was not required to find that he intended his messages to communicate a threat. In so holding, the court of appeals followed the Colorado Supreme Court, which, ‘[i]n the absence of additional guidance from the U.S. Supreme Court . . . decline[d] . . . to say that a speaker’s subjective intent to threaten is necessary for a statement to constitute a true threat for First Amendment purposes.’”

Amici argued that “in order for speech to fall within the category of unprotected ‘true threats,’ the state must establish both that the offending statements were objectively threatening in context and that the defendant subjectively intended to threaten the recipient. Because the Colorado statute and the conviction below dispense with any inquiry into subjective intent, and therefore punish speech that is not intended to threaten at all, the conviction cannot stand.” 

The U.S. Supreme Court held: “The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness.” The Court held that that recklessness is the required mens rea - the state must show a person ‘consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another,’ Voisine v. United States, 579 U. S. 686, 691. 

The Court vacated and remanded Counterman’s case, holding that the state’s prosecution of Counterman under an objec¬tive standard which did not require showing any awareness on Counter-man’s part of his statements’ threatening character violated the First Amendment.


Mark Silverstein and Sara R. Neel, ACLU of Colorado, Denver, CO; Jack M. Balkin, David A. Schulz, Kelsey Eberly, and Rachel Davidson, Abrams Institute for Freedom of Expression, New Haven, CT; Brian M. Hauss, Laura Moraff, Ben Wizner, ACLU, New York, NY; David D. Cole, ACLU, Washington, DC; Barbara Bergman, NACDL, Tucson, AZ; Eric M. Freedman, National Coalition Against Censorship, New York, NY

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