Among the cases to be heard by the U.S. Supreme Court will be Counterman v. Colorado, No. 21-138.
The case focuses on whether to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.
University of Georgia School of Law Marshall Chair of Constitutional Law Randy Beck is available for further commentary at rbeck@uga.edu.
What is the chief legal question in the case? Counterman v. Colorado is about the rule that “true threats” are not protected by the First Amendment. The issue is whether the speaker has to subjectively know or intend that others understand the comments as threatening, or whether it is enough that a “reasonable person” would view the words as a threat of violence.
What are the key arguments of the case?
The petitioner claims that he did not mean to threaten anyone and therefore his speech should be protected by the First Amendment, even if others found the comments intimidating. The petitioner argues that allowing him to be prosecuted in this case threatens First Amendment values because people will self-censor to avoid the risk that someone else will misunderstand what they are trying to communicate.
On the other hand, if a listener could reasonably understand a person’s comments as threatening, they may experience the kind of fear for personal safety the true threats exception is designed to prevent, whether or not that was what the speaker intended.
What are the possible impacts of the case? Why do they matter? The case could potentially play a significant role in cases arising from domestic disputes.
