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CAAFlog

United States Supreme Court

6/27/2023

 
The court has issued an opinion in Counterman v. Colorado.
From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged violent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined social engagements, and canceled some of her performances. C. W. eventually contacted the authorities. The State charged Counterman under a Colorado statute making it unlawful to “[r]epeatedly . . . 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. Following Colorado law, the trial court rejected that argument under an objective standard, finding that a reasonable person would consider the messages threatening. Counterman appealed, arguing that the First Amendment required the State to show not only that his statements were objectively threatening, but also that he was aware of their threatening character. The Colorado Court of Appeals disagreed and affirmed his conviction. The Colorado Supreme Court denied review.

​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. 
Questions
6/28/2023 08:43:37

I just don’t understand how this case is going to make a functional difference. There aren’t going to be many (if any) cases where the Accused says “I know that my actions were reckless”. The Accused’s subjective intent of recklessness (or a higher mens rea) is going to be proven in almost all cases by inferences based on the totality of circumstances…which I don’t think is that different from an objective test.

I feel like I am missing something.

D
6/28/2023 14:29:50

There was a guy running around making threats to sc judges and even had a weapon, wasn't there? Think he made calls to people saying that he didn't want to do any harm and begging for help. Something like that, or making angry statements.

Call this an act of mercy.

Questions
6/28/2023 16:20:28

Isn’t the fact that he made clear that he didn’t want to hurt anybody evidence of his subjective recklessness? He knew that a reasonable person would think he was making a threat and he felt a need to explain it away that he wasn’t actually going to do it. I think that guy still gets convicted.

But I do appreciate your clarification. There may be some people who are short of 706 incapacitation but are suffering from something that means they don’t have a reckless mens rea. Still think it is a pretty small subset.

D
6/29/2023 11:32:52

At worst a question of fact for a jury. That would be convoluted to prove and argue. So bring on the expert witnesses. Either way, there are no shortages of people testing 1A limits these days. We might start with this musicians fans when they find Counterman's social media sites.

E Fidell put up a piece on The Hill about the sc ruling in Jones v. Hendrix. 'legal innocene' is not enough. Seems more applicable to CAAF cases because the lean toward final disposal of cases.

Nathan Freeburg
7/1/2023 08:36:19

Mark Bennett makes the argument that the real significance of Countermand is that it resolves the tension between Stevens and Williams-Yulee in favor of Stevens (i.e. by limiting restrictions to only recognized historically unprotected speech.). This has broader implications.


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    Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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