U.S. Supreme Court Clarifies the Standard for ‘True Threats’
Author: Michelle Carl
Carl, M. (2023, September 6). U.S. Supreme Court clarifies the standard for “true threats.” Association of California School Administrators. https://content.acsa.org/u-s-supreme-court-clarifies-the-standard-for-true-threats/
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U.S. Supreme Court Clarifies the Standard for ‘True Threats’
This resource is provided by ACSA Partner4Purpose Lozano Smith.
In Counterman v. Colorado (June 27, 2023, No. 22-138) 600 U.S. __, the United States Supreme Court analyzed the First Amendment’s free speech protections in the context of “true threats.” While previous case law had established that true threats are not protected speech (and therefore may be restricted), the Supreme Court has now clarified that for a statement to be considered a true threat and thus unprotected speech, the speaker must have had “some subjective understanding of the statement’s threatening nature.” To meet the standard, the speaker must, at a minimum, act with recklessness.
You’re right to notice how squishy that “some subjective understanding” language feels; the law is trying to draw a line that’s not purely “whatever a reasonable person thinks,” but also not “we can only punish if the speaker confesses they meant to terrify someone.”
Here are a few concrete things you might find useful as you think this through:
- The sentence you quoted comes from how people are summarizing Counterman v. Colorado (2023), where the Court said the First Amendment requires at least a showing of recklessness—that the speaker “consciously disregarded a substantial risk” that their words would be seen as threatening violence (Lozano Smith, U.S. Supreme Court Clarifies the Standard for ‘True Threats,’ 2023).
- That standard builds on Elonis v. United States (2015), where the Court rejected a “reasonable person” test by itself and required some kind of subjective mental state for criminal threat statutes, at least knowledge or recklessness about how the words would be taken (U.S. Courts, Facts and Case Summary – Elonis v. United States, 2015; LegalClarity, Elonis v. United States, 2024).
- If you want thoughtful, “all sides on the law” takes (as opposed to hot takes on Wagner specifically), some accessible scholars and resources on the true-threats question include: Eugene Volokh (UCLA), who has written a lot about threats and First Amendment doctrine in law reviews and on his blog; the First Amendment Encyclopedia at MTSU, which has a plain-language entry on Counterman; and commentary from places like the Cato Institute or the ACLU that often argue for strong speech protections while taking threats and harassment seriously (Middle Tennessee State University, Counterman v. Colorado, 2023).
- Your instinct about the “court of public opinion” is also something scholars write about a lot under headings like “pretrial publicity” and “the criminalization of online speech”—it’s common to see arguments that arrests and press conferences can function as punishment even if charges are never brought or convictions never follow (Criminal Legal News, SCOTUS Announces Recklessness Standard, 2023).
If you were to write a short paragraph or page right now about how this “subjective understanding” standard complicates the Wagner situation (without needing to solve it), what angle or question would you want to lead with—and do you want to explore that more by clicking Continue with AI here, or would you rather go to Create Document to start (or upload) something you can read and annotate?
Background
From 2014 to 2016, Bill Counterman sent hundreds of Facebook messages to C.W., a local Colorado singer and musician whom Counterman had never met. C.W. never responded to his messages, and while she blocked his accounts repeatedly Counterman created a series of new accounts and continued to contact her. Counterman’s messages ranged in intrusiveness from “Good morning sweetheart” to “Staying in cyber life is going to kill you” and “You’re not being good for human relations. Die.” C.W. believed that Counterman was threatening her life, and her resulting fear and anxiety caused her trouble sleeping and resulted in her declining social invitations, cancelling performances, and losing money.
Based solely on his Facebook messages, the State of Colorado charged Counterman under a “stalking” statute that makes it unlawful to “repeatedly … 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.” Counterman argued that his messages were protected under the First Amendment, but the Colorado court held that his messages were threats and thus not protected speech.
- This comparison you’re making between Counterman and Wagner is doing useful work: you’re flagging that in Counterman the threats track one, identifiable target, while in Wagner the threats sound more diffuse and generalized (based on the AP reporting you’ve read).
- If you keep this, you might decide: are you using Wagner mainly to show how lower courts are reading Counterman, or to show how messy “true threat” analysis gets when the threats aren’t clearly directed at a single victim (see, for example, discussion of Counterman’s “true threats” standard in (Oyez, Counterman v. Colorado, 2023))?
- You could also ask yourself whether you want to stay very close to the record (what the AP article actually quotes from Wagner’s deposition) or whether you want to use Wagner more as a springboard to ask how courts should treat generalized violent fantasizing versus direct targeting.
- One more decision point: do you want to explicitly say why “aimed at a specific person” matters doctrinally (for example, for the “true threat” category and for the reasonable-person/emotional-distress framing in the Colorado statute), or let the reader infer that from your later analysis?
If you read back over this Wagner/Counterman comparison, what’s one sentence you might add (or one phrase you might tweak) to spell out why the “specific person” versus “not aimed at that person” distinction matters for your argument—and do you want to explore that now by clicking Continue with AI, or start/bring in a text to work on at Create Document instead?
The Supreme Court heard the case on appeal.
The Counterman Opinion
While the First Amendment protects freedom of speech, it allows some restrictions on the content of speech in a few limited areas such as “true threats,” which are serious expressions that a speaker intends to commit an act of unlawful violence against a particular person or group of people. Even within unprotected categories of speech, any limit on speech raises concerns about the potential chilling effects such limits could have on protected speech. Accordingly, although true threats fall outside the bounds of the First Amendment’s protection, their prohibition must balance the benefits of banning dangerous threats with the risks of unintentionally deterring non-threatening, protected speech.
- This breakdown is doing careful work: it separates strong, emotional protest language from what courts call a “serious expression” of intent to do violence (see (Legal Information Institute, True Threat, n.d.)).
- Noticing that “intends to commit an act of unlawful violence” is a judgment call is important, because courts look at context, tone, audience, and how a reasonable person would understand the words (see (Oyez, Elonis v. United States, 2015)).
- You’re also tracking that the target is “a group of people” (ICE agents) rather than a vague “they,” which matters because threats toward a clearly defined group are more likely to be treated as “true threats” than broad political anger (see (Congressional Research Service, First Amendment: True Threats, 2023)).
- One next move could be to decide what specific facts about Wagner’s words and situation you’d use to argue that this is (or is not) a “serious expression” rather than just hyperbole.
If you had to choose one short detail from the Wagner situation that best proves your view about whether this was a true threat, what would you pick and why—and do you want to click Continue with AI to think it through here, or go to Create Document to build your full paragraph or essay?
- The move you’re making here is a values question: what matters more in this case—stopping a possible threat or protecting space for protest against the government.
- You’re also hinting that in Wagner, the state’s real goal might be to chill resistance to ICE, not just to stop violence, which raises First Amendment worries when the government punishes dissenting views instead of real threats (see general discussion of “true threats” doctrine in (Counterman v. Colorado, 2023)).
- One choice you could make as a writer is to say more concretely what about Wagner’s words/behavior felt like protest or resistance (aimed at ICE) rather than a serious intent to harm a specific person.
- Another choice is to name what you think the “cost” is if the court upholds his conviction—for example, what kinds of future protests or everyday criticism of ICE might people decide not to say.
If you look back at just 2–3 sentences of what you’ve written on Wagner, what is one concrete detail from the facts or one specific court standard you might add to back up your balance judgment—and do you want to click Continue with AI to talk that through here, or go to Create Document to keep building your draft there?
In Counterman, the Supreme Court held that for a statement to be a true threat, the speaker must have some subjective understanding of the statement’s threatening nature. The minimum standard for the speaker’s subjective understanding is recklessness, which is met by showing that the speaker “consciously disregarded a substantial risk” that the communication would be viewed as threatening violence. Counterman was prosecuted in Colorado using only an objective standard, where the state court required the prosecution to prove only that a reasonable person would understand the statements as threats. Because the state did not prove Counterman’s state of mind, i.e., that he was subjectively aware that his statements would be understood as threats, whether in actuality or using the recklessness standard, the Supreme Court reversed the Colorado judgment and remanded for further proceedings.
- This paragraph does clear work explaining how the Counterman decision sets a high bar for proving Wagner’s state of mind.
- One choice you’re making is to explain “subjectively aware” in your own words, which really helps: you spell out that the government must show he knew his words would likely lead to unlawful violence, not just that they were ugly or extreme.
- You’re also adding a small argument at the end—that this high burden helps explain why prosecutors might avoid the grand jury—which turns this from pure summary into your own legal reasoning.
- If you look at this section as part of a bigger piece, what do you most want your reader to take away here: the legal rule from Counterman, or your point about why the government might hesitate to charge Wagner?
Takeaways
Public agencies should take note of the freshly articulated standard for true threats, which may be relevant to assessing threats, pursuing discipline against employees or students, and pursuing restraining orders.
If you have questions about this case or First Amendment protections, please contact an attorney at one of Lozano Smith’s eight offices located statewide.
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