SCOTUS Decision on Free Speech Versus Harassment

On June 27, 2023, the Supreme Court of the United States released its opinion for the case Counterman v. Colorado. This decision regards speech that can be considered harassing or threatening, and it helps clarify when this type of speech is or is not protected by the First Amendment.

The Supreme Court decided that harassing speech can be considered a “true threat” — a type of speech not protected by the First Amendment — when it can be proven that the statements meet a standard of recklessness.

This decision will help our law firm defend clients charged with harassment. If you have been improperly accused of harassment, we may be able to prove that you did not consciously disregard any significant risks, so your statements were actually protected speech.

Read on for more about the Counterman v. Colorado case and the Supreme Court’s decision:

In an online stalking case, the state of Colorado found that Counterman had sent messages “that a reasonable person would have viewed … as threatening.” This is known as an “objective ‘reasonable person’ standard.” Using this standard, Colorado found that Counterman’s messages constituted “true threats” and so the First Amendment did not protect his speech.

“True threats” are defined as “serious expressions conveying that a speaker means to commit an act of unlawful violence.”

Counterman’s defense was that he had not had a “subjective intent to threaten,” so his messages could not be true threats. He appealed his case, reasoning that “the First Amendment requires the State to show that he was aware of the threatening nature of his statements.” His appeals went all the way to the United States’ Supreme Court, whose justices looked at the precedent and agreed that Counterman’s First Amendment rights had been violated by the state of Colorado.

The crux of this issue rests on whether or not, in true threats cases, the State must prove “that the defendant had some subjective understanding of his statements’ threatening nature.” The Supreme Court says yes, the State must prove some understanding, but only to the level of recklessness.

The “recklessness standard” is achieved when it is proven that “a person consciously disregarded a substantial and unjustifiable risk that his conduct will cause harm to another.”

In the end, the Supreme Court vacated and remanded Counterman’s conviction, which means that the Colorado courts will use the guidance of the Supreme Court’s decision to retry Counterman’s case.

This opinion gives us new ways to defend our clients who are charged with harassment. If you or a loved one are involved in a harassment case, give Kenny, Burns & McGill a call today! (215) 423-5500

You can read the Supreme Court’s full opinion here: link