Page:Counterman v. Colorado.pdf/6

Rh 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. In line with Colorado law, the trial court assessed the true-threat issue using an “objective ‘reasonable person’ standard.” People v. Cross, 127 P. 3d 71, 76 (Colo. 2006). Under that standard, the State had to show that a reasonable person would have viewed the Facebook messages as threatening. By contrast, the State had no need to prove that Counterman had any kind of “subjective intent to threaten” C. W. In re R. D., 464 P. 3d 717, 731, n. 21 (Colo. 2020). The court decided, after “consider[ing] the totality of the circumstances,” that Counterman’s statements “r[o]se to the level of a true threat.” 497 P. 3d, at 1045. Because that was so, the court ruled, the First Amendment posed no bar to prosecution. The court accordingly sent the case to the jury, which found Counterman guilty as charged.

The Colorado Court of Appeals affirmed. Counterman had urged the court to hold that the First Amendment required the State to show that he was aware of the threatening nature of his statements. Relying on its precedent, the court turned the request down: It “decline[d] today to say that a speaker’s subjective intent to threaten is necessary” under the First Amendment to procure a conviction for threatening communications. Id., at 1046 (quoting R. D., 464 P. 3d, at 731, n. 21). Using the established objective standard, the court then approved the trial court’s ruling that Counterman’s messages were “true threats” and so were not protected by the First Amendment. 497 P. 3d, at 1050. The Colorado Supreme Court denied review.

Courts are divided about (1) whether the First Amendment requires proof of a defendant’s subjective mindset in