{"id":2352,"date":"2025-07-03T00:00:32","date_gmt":"2025-07-03T04:00:32","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/?page_id=2352"},"modified":"2025-07-03T00:00:32","modified_gmt":"2025-07-03T04:00:32","slug":"the-mens-rea-of-true-threats-revisiting-counterman-v-colorado","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/aclr-online\/volume-62\/the-mens-rea-of-true-threats-revisiting-counterman-v-colorado\/","title":{"rendered":"The Mens Rea of True Threats: Revisiting Counterman v. Colorado"},"content":{"rendered":"

In an era of heightened political polarization, threats of violence have become increasingly prevalent in online discourse.[1]<\/a> With the rise of social media and increasing connectivity through the internet, there has been a surge in the number and scope of threats against private individuals and against public officials, judges, and presidential candidates.[2]<\/a> Society\u2019s tacit acceptance of threats and the standard for considering what a threat may entail has evolved: in the 1940\u2019s, calling someone a \u2018fascist\u2019 could have been a fighting word,[3]<\/a> whereas today, the word \u2018fascist\u2019 is commonly used in political discourse.[4]<\/a> Indeed, the \u201crapid changes in the dynamics of communication and information transmission,\u201d especially in communicating online, have changed what \u201csociety accepts as proper behavior.\u201d[5]<\/a><\/p>\n

The ever-expanding types of forums for making threatening speech have created a large pool of victims. Over time, an increasing number of people in the United States have experienced \u201chate or harassment\u201d online, with many experiencing severe harassment.[6]<\/a> The victims of these threats suffer fear and stress, forcing some to adopt protective measures that reduce their \u201cability to live and travel freely.\u201d[7]<\/a> To public officials and law enforcement officers, threats can impede their ability to conduct their official duties and deter others from engaging in public service.[8]<\/a> Consequently, law enforcement officials have devoted significant resources to detect and mitigate serious and dangerous threats.[9]<\/a><\/p>\n

As such, prosecutors face questions whether these threats cross \u201cthe line from constitutionally protected speech\u201d under the First Amendment \u201cto violations of federal law.\u201d[10]<\/a> While the First Amendment states that \u201cCongress shall make no law .\u00a0.\u00a0. abridging the freedom of speech,\u201d[11]<\/a> the Supreme Court has consistently held that the freedom of speech is not absolute.[12]<\/a> When speech is exempted from First Amendment protection, it is because that speech plays \u201cno essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [that speech] is clearly outweighed by the social interest in order and morality.\u201d[13]<\/a> The government can punish words that \u201cby their very utterance inflict injury or tend to incite an immediate breach of the peace,\u201d[14]<\/a> which includes what the Court has called \u201ctrue threats.\u201d[15]<\/a> The Court distinguishes between a true threat from what they term \u201cjests\u201d or \u201chyperbole,\u201d defining true threats as \u201c\u2018serious expression[s]\u2019 conveying that a speaker means to \u2018commit an act of unlawful violence.\u2019\u201d[16]<\/a><\/p>\n

To hold a person criminally liable for a true threat, the Supreme Court held in Counterman v. Colorado<\/em> that the individual making the true threat must have an \u201cunderstanding\u201d of the \u201cstatements\u2019 threatening character\u201d with a mens rea[17]<\/a> of recklessness.[18]<\/a> To meet the recklessness standard, the individual must \u201cconsciously disregard a substantial risk that the conduct will cause harm to another.\u201d[19]<\/a> While the Counterman <\/em>majority explains the benefits of their remedy,[20]<\/a> this Note argues that the Court strikes the wrong balance that sweeps in too much conduct and imposes a one-size-fits-all remedy to all speech under the true threats exception to the First Amendment.<\/p>\n

To better balance First Amendment speech while also holding individuals criminally liable for making true threats, I argue that the recklessness standard that sweeps in all<\/em> speech considered a \u201ctrue threat\u201d is too broad and unworkable. Instead, I posit that (1) repeated or sustained[21]<\/a> speech categorized as true threats should be not be held to the recklessness standard announced in Counterman<\/em> for criminal liability, as it should instead be held to an objective test, and (2) to impose criminal liability on isolated or discrete[22]<\/a> speech categorized as a true threat, the mens rea of knowledge[23]<\/a> is the correct path forward.<\/p>\n

In Part I, I provide a brief background of true threats jurisprudence. In Part II, I discuss the relevant background of Counterman <\/em>and how the Counterman<\/em> court resolved lingering questions within the true threats exception. In Part III, I argue that the Counterman<\/em> holding is too broad. To remedy this broad holding, I present the case for excluding repeated or sustained speech from Counterman<\/em>\u2019s suggested subjective standard. In Part IV, I evaluate speech that is isolated or discrete, concluding that the proper standard to hold an individual criminally liable for this type of speech should be raised to knowledge as a constitutional floor, not recklessness. Finally, I offer additional considerations that courts ought to look to in evaluating criminal liability of speech within the context of the evolving landscape of American discourse.<\/p>\n

Read More<\/a><\/p>\n

[1]<\/a> Joseph Palmer, When Does Online Speech Become a Federal Crime?<\/em>, 77 Dept. of Just. Fed. L. & Prac. 77, 77 (2023).<\/p>\n

[2]<\/a> Id.<\/em> at 77; see also <\/em>United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011) (discussing online threats an individual made against then-Presidential candidate Barack Obama).<\/p>\n

[3]<\/a> See <\/em>Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (finding a statute did not violate the First Amendment that criminalized an individual calling someone else a \u201cdamned Fascist,\u201d as it was a fighting word exempt from First Amendment protections).<\/p>\n

[4]<\/a> See, e.g.<\/em>, Rich Barlow, Are Trump Republicans Fascists?<\/em>, BU Today (Feb. 11, 2022), https:\/\/www.bu.edu\/articles\/2022\/are-trump-republicans-fascists\/.<\/p>\n

[5]<\/a> Counterman v. Colorado, 600 U.S. 66, 87 (2023) (Sotomayor, J. concurring in part) (quoting Ontario v. Quon, 560 U.S. 746, 759 (2010)).<\/p>\n

[6]<\/a> See <\/em>Ctr. for Tech. and Soc\u2019y, Am. Defamation League, Online Hate and Harassment: The American Experience 2023 8 (2023) (discussing a survey in which fifty-two percent of American adults surveyed \u201creported experiencing hate or harassment online at some point in their lives\u201d while thirty-seven percent reported experiencing \u201csevere harassment,\u201d including \u201cphysical threats, sustained harassment, stalking, sexual harassment, doxing, and swatting\u201d).<\/p>\n

[7]<\/a> Palmer, supra <\/em>note 1, at 77; see also<\/em> Counterman<\/em>, 600 U.S. at 109 n.1 (Barrett, J. dissenting) (\u201cThe statutory findings explain that stalking, harassment, and threats have \u2018an immediate and long-lasting impact on quality of life as well as risks to security and safety of the victim and persons close to the victim.\u2019\u201d (quoting Colo. Rev. Stat. \u00a7\u00a7\u00a018\u20133\u2013601(1)(f), 18\u20133\u2013602(1) (2022))).<\/p>\n

[8]<\/a> Palmer, supra <\/em>note 1, at 77.<\/p>\n

[9]<\/a> Id.<\/em> at 77.<\/p>\n

[10]<\/a> Id.<\/em> at 78.<\/p>\n

[11]<\/a> U.S. Const. amend. I.<\/p>\n

[12]<\/a> See, e.g.<\/em>, Gitlow v. New York, 268 U.S. 652, 666\u201367 (1925).<\/p>\n

[13]<\/a> See <\/em>Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (discussing fighting words).<\/p>\n

[14]<\/a> Id.<\/em><\/p>\n

[15]<\/a> See e.g.<\/em> Counterman v. Colorado, 600 U.S. 66 (2023).<\/p>\n

[16]<\/a> Id.<\/em> at 74 (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)).<\/p>\n

[17]<\/a> Mens rea, or \u201cguilty mind,\u201d refers to the mind state of a defendant required to impose criminal liability. Paul H. Robinson, Mens Rea<\/em>, in Encyclopedia of Crime & Justice 995, 995 (2nd ed., 2002).<\/em><\/p>\n

[18]<\/a> Counterman v. Colorado, 600 U.S. 66, 73 (2023).<\/p>\n

[19]<\/a> Voisine v. United States, 579 U.S. 686, 691 (2016) (citing ALI, Model Penal Code \u00a7\u00a02.02(2)(c) (1962)).<\/p>\n

[20]<\/a> Counterman<\/em>, 600 U.S. at 82 (explaining that the majority\u2019s standard \u201coffers \u2018enough \u201cbreathing space\u201d for protected speech,\u2019 without sacrificing too many of the benefits of enforcing laws against true threats\u201d).<\/p>\n

[21]<\/a> I define repeated or sustained as threatening speech or conduct that occurs more than once over a longer period of time, such as a pattern of behavior akin to stalking or harassment.<\/p>\n

[22]<\/a> I define isolated or discrete as threatening speech or conduct that occurs once that happens in a discrete time frame, akin to a threatening utterance or political protest.<\/p>\n

[23]<\/a> A mens rea of knowledge would entail that an individual is \u201caware\u201d that a specific \u201cresult is practically certain to follow,\u201d that is, that an individual knows \u201cto a practical certainty that others will take his words as threats.\u201d Counterman<\/em>, 600 U.S. at 79.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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