On April 19, 2023, the Court considered a question of free speech and criminal law: whether, in order for a statement to be categorized as a "true threat" and thus not protected under a right to free speech, the speaker must subjectively know or intend the threatening nature of the statement, or whether it is enough that an objective "reasonable person" would regard the statement as a threat of violence.

The facts of the case that poses this question for the Court, Counterman v. Colorado, are as follows. Billy Raymond Counterman was convicted and sentenced to fourandahalf years in the state of Colorado for stalking a local female musician. According to Colorado Law, stalking entails “mak[ing] any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress.”

Over the course of two years, Counterman sent the woman direct messages on Facebook in which he suggested that he had seen her while driving and made comments such as “Die” and “(expletive) off permanently.” The woman told a family member that she was “extremely scared” after receiving these messages.

Lower courts in Colorado upheld Counterman’s conviction, ruling that the appropriate test for whether Counterman’s statements qualified as a “true threat,” was whether a reasonable person would regard the statement as a threat of violence. The question now comes before the Court as to whether that “reasonable person” test is correct, or whether intent must be established.

Please join us as we break down and analyze how oral argument went before the Court.

Featuring:

Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.