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June 27, 2023

Supreme Court decides reckless mens rea sufficient for prosecution of threatening communications

The US Supreme Court this morning decided the last big criminal case on its docket for the current Term with its opinion in Counterman v. Colorado, No. 22-138 (S. Ct. 2023) (available here). Justice Kagan wrote the opinion for the Court, which starts this way:

True threats of violence are outside the bounds of First Amendment protection and punishable as crimes.  Today we consider a criminal conviction for communications falling within that historically unprotected category.  The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements.  We hold 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.

Justice Sotomayor, partially joined by Justice Gorsuch, wrote a lengthy concurring opinion that concludes this way:

I agree with the Court’s conclusion that the First Amendment requires a subjective mens rea in true-threats cases, and I also agree that recklessness is amply sufficient for this case.  Yet I would stop there, leaving for another day the question of the specific mens rea required to prosecute true threats generally.  If that question is reached, however, the answer is that true threats encompass a narrow band of intentional threats.  Especially in a climate of intense polarization, it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard.  Our society has often concluded that an intent standard sets a proper balance between safety and the need for a guilty mind, even in cases that do not involve the First Amendment.  Surely when the power of the State is called upon to imprison someone based on the content of their words alone, this standard cannot be considered excessive.  Because I part ways with the Court on this score, I respectfully concur only in part and in the judgment.

Justices Thomas and Barrett both authored dissenting opinion. Justice Barrett's is the main dissent joined by Justice Thomas, though Justice Thomas also writes on his own to complain that "the majority chooses not only to prominently and uncritically invoke New York Times [v. Sullivan], but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence."  Justice Barrett's dissent includes this passage at the outset:

True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard. Nonetheless, the Court adopts a subjective standard, though not quite the one advanced by Counterman. The Court holds that speakers must recklessly disregard the threatening nature of their speech to lose constitutional protection. Because this unjustifiably grants true threats preferential treatment, I respectfully dissent.

June 27, 2023 at 10:18 AM | Permalink


"sticks and stones may break my bones, but words will never harm me."

Posted by: beth curtis | Jun 27, 2023 11:58:58 AM

Maybe it's just me, but this debate seems like making a mountain out of a molehill. I have not seen that many cases around my state that have made it up to an appellate court that seem like a close call. (Which, at the very least suggests that if prosecutors are charging bordeline cases, then juries are rejecting those cases.) And, in most cases, the difference between an objective standard and a reckless subjective standard seems like semantics. If an objective person would view the defendant's comments as a threat, it probably is a gross deviation from the norms of conduct for the defendant to not subjectively perceive it as a threat. In any case, intent is normally derived from circumstantial evidence, and I have trouble seeing how in a case like Counterman any reasonable jury would have trouble concluding that defendant knew that he was making a threat.

Posted by: tmm | Jun 27, 2023 2:29:45 PM

FYI, TMM, this case was in front of SCOTUS precisely because the record demonstrated that Counterman most likely didn't understand that his conduct would've been considered threatening because of his profound mental illness. The final opinion doesn't make this clear but the briefing, oral argument, and indeed the findings from the trial court evidenced that conclusion. See, e.g., pet.'s br., https://www.supremecourt.gov/DocketPDF/22/22-138/255333/20230222155744400_Brief%20for%20the%20Petitioner.pdf

Posted by: CBL | Jun 27, 2023 2:51:48 PM

CBL, Counterman may be the exceptional case, and it might matter in a bench trial. But the appellate standard is going to view the evidence in the light most favorable to a jury verdict and, to the average juror, the difference between a knowing objective standard and a reckless subjective standard will simply be legal mumbo jumbo that will only rarely impact the verdict.

Posted by: tmm | Jun 27, 2023 10:51:25 PM

And thanks to Jones v. Hendrix, the courts will not be inundated with 2241 habeas petitions from federal prisoners who were convicted under a statute that did not require at least recklessness and who have already completed one round of 2255 review.

Posted by: Da Man | Jun 28, 2023 9:49:50 AM

Da Man, Counterman is a state case AND involves application of a new substantive constitutional rule, so you are wrong on key particulars here.

Posted by: Doug B | Jun 28, 2023 2:55:27 PM

Then I amend my comment to reflect what the state of affairs will be when the SCOTUS invokes Countermand in a federal criminal case.

Posted by: Da Man | Jun 28, 2023 10:52:57 PM

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