True Threats?

By Daniel Pollitt, Associate, at 2nd-Chair 

 “True threats” are not protected by the First Amendment, and therefore, you can be criminally charged for making statements online that cross this threshold. Over the past five to ten years, both the Colorado Supreme Court and the Tenth Circuit Court of Appeals have refined their tests for analyzing whether social media posts and internet communications constitute “true threats.”

However, prior to 2023, courts across the country were divided about whether the First Amendment required proof of a defendant’s subjective mindset and the appropriate mens rea in true-threats cases. The United States Supreme Court resolved these issues in June of 2023.

In true-threats cases, the state must establish a defendant had some subjective understanding of the threatening nature of his statements and that he consciously disregarded a substantial and unjustifiable risk that his statements would cause harm to another.

When in doubt, think before you post.

Counterman v. Colorado, 600 U.S. ___ (2023)

           In 2022, the United States Supreme Court granted cert to review a Colorado man’s stalking conviction based on sending Facebook messages to a local musician.

Mr. Counterman was originally charged with stalking in 2016 in Arapahoe County. The state alleged he sent hundreds of Facebook messages to a local musician over a two-year period and created new accounts every time she attempted to block him. The messages ranged from ordinary to angry to indicative of surveillance to forecasting harm. The messages put the musician in fear and “upended her daily existence.”

           Mr. Counterman filed a motion to dismiss with the trial court, arguing his messages were not true threats and were protected by the First Amendment. The trial court rejected this argument and concluded the state need only establish a reasonable person would have viewed Mr. Counterman’s messages as threatening and need not prove Mr. Counterman had a subjective intent to threaten. A jury convicted Mr. Counterman of stalking.

           The Colorado Court of Appeals affirmed Mr. Counterman’s conviction and declined to hold “that a speaker’s subjective intent to threaten is necessary” to secure a conviction for making threatening communications.

           When the Colorado Supreme Court denied review, the United States Supreme Court granted cert to resolve two issues: “(1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threats cases, and (2) if so, what mens rea standard is sufficient.”

           The Court concluded that in true-threats prosecutions, the state must prove the defendant had some subjective understanding of the threatening nature of his statements.

In determining the appropriate mens rea, the Court examined the history of true threats in the context of the First Amendment. The Court noted true threats are serious expressions conveying the speaker means to commit an act of unlawful violence.[ The existence of a threat does not depend on the author’s mental state but on what the statement conveys to the recipient.

In seeking to strike the appropriate balance between curtailing unprotected speech that subjects people to fear of violence and chilling protected speech, the Court determined conditioning liability on a reckless mental state “offers enough breathing space for protected speech without sacrificing too many of the benefits of enforcing laws against true threats.”

In settling on a reckless mens rea, the Court reasoned recklessness “is morally culpable conduct, involving a deliberate decision to endanger another[.]”[ Reckless defendants “have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm[.]”

Despite settling on a recklessness standard, the Court appeared to offer slightly different tests throughout the opinion:

Initially, the Court noted the state “must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”[12] Later in its opinion, however, the Court noted “[i]n the threats context, [recklessness] means that a speaker is ‘aware that others could regard his statements as’ threatening violence and ‘delivers them anyway.’”

Further, in her concurrence, Justice Sotomayor concluded a reckless mens rea is “amply sufficient” in stalking cases where a defendant is charged with making “a combination of threatening statements and repeated, unwanted, direct contact[.]” However, she disagreed with the majority’s conclusion that recklessness is sufficient for all prosecutions involving true threats. Rather, in pure speech cases, intent is the proper mens rea. “[T]rue threats should be limited to intentionally threatening speech[,]” i.e. “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.”

Additionally, the majority opinion and Justice Sotomayor’s concurrence indicate the fighting-words doctrine—the criminalization of “‘personally abusive epithets’ that are ‘inherently likely to provoke violent reaction’”—may be not for long. Both opinions note the Court has not upheld a conviction under the fighting-words doctrine in 80 years, and it is “a poor candidate for spinning off other First Amendment rules.” Thus, the Court appears likely to strike down laws that criminalize, and convictions where a defendant is found guilty of, breaching the peace.

Finally, of particular note to Meilstrup & Brown’s Title IX practice, the Counterman opinion applies to civil cases as well as to criminal prosecutions. Accordingly, a recklessness mens rea applies when a person seeks a restraining order based on a threat, in civil enforcement actions, in employment actions, and in school discipline cases.

Ultimately, the majority concluded “[t]he rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats” but maintains “much of what is important on both sides of the scale.”

           Because Mr. Counterman was prosecuted based solely on an objective standard, and the state was not required to show Mr. Counterman had any understanding that his statements would be understood as threats, the Court vacated his conviction and remanded for further proceedings.[23]

           If you or a client were convicted of or are charged with a crime based on threatening speech, contact the attorneys at 2nd-Chair and Meilstrup & Brown to discuss how to challenge your conviction in light of Counterman.

Colorado

In 2020, the Colorado Supreme Court decided In re Interest of R.D., 464 P.3d 717 (Colo. 2020), a juvenile delinquency case involving a Twitter argument between students from rival high schools. The argument took place on the heels of a school shooting and escalated into the students threatening to shoot each other. Following a bench trial, R.D. was adjudicated delinquent and found guilty of harassment, C.R.S. § 18-9-111(1)(e).

The Colorado Supreme Court used this case as an opportunity to refine its test for distinguishing true threats from constitutionally protected speech. The court defined a true threat as “a statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence[.]” Notably, this definition does not impose a blanket requirement that the speaker or poster subjectively intend to threaten another person.

The court expanded on this definition and outlined a non-exhaustive list of factors for lower courts to consider when deciding a case involving online statements:

(1)   The statement’s role in a broader exchange, if any, including surrounding events;

(2)   The medium or platform through which the statement was communicated, including any distinctive conventions or architectural features;

(3)   The manner in which the statement was conveyed (e.g., anonymously or not, privately or publicly);

(4)   The relationship between the speaker and recipient(s); and

(5)   The subjective reaction of the statement’s intended or foreseeable recipients.

In emphasizing the fact-intensive nature of these inquiries, the court instructed lower courts to begin an analysis with the words themselves, along with accompanying emojis, symbols, and pictures before examining whether the statement contains “accurate details tending to heighten its credibility” and whether the speaker did or said anything to undermine the threat’s credibility.

10th Circuit

In federal cases, this issue often arises in the context of 18 U.S.C. § 875(c), which criminalizes the transmission of “any communication containing any threat to kidnap any person or any threat to injure the other person” in interstate or foreign commerce.

In 2015, the United States Supreme Court decided Elonis v. United States, a case involving Facebook posts made under a pseudonym that contained threats to injure the poster’s wife and coworkers, a kindergarten class, and law enforcement. 575 U.S. 723 (2015). The ultimate issue in Elonis was whether a defendant must have the subjective intent to threaten to be convicted under 18 U.S.C. § 875(c) or whether a defendant can be convicted if a “reasonable person” would view the statements as threats. In reversing Mr. Elonis’ conviction, the Court held the mental state requirement of 18 U.S.C. § 875(c) is satisfied “if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.”

The Supreme Court expanded on this issue in Counterman, holding in true-threats cases, the state must establish a defendant had some subjective understanding of the threatening nature of his statements and that he consciously disregarded a substantial and unjustifiable risk that his statements would cause harm to another.

Prior to Counterman, the standard in the Tenth Circuit was slightly different from the Supreme Court’s holding in Elonis. While Elonis expressly reserved the question of whether a defendant can be convicted under 18 U.S.C. § 875(c) based on a “reckless” mental state, the Tenth Circuit held a defendant cannot violate this statute without “intent.” See United States v. Mjoness, No. 20-8029, 2021 WL 4078002, at *2, n.2 (10th Cir. Jul. 13, 2021) (“We have held . . . a conviction under § 875(c) requires intent; that is, a violation of § 875(c) cannot be committed with a mens rea of mere recklessness”).

When analyzing these types of cases, the Tenth Circuit has previously held that to be a “true threat,” the statement “must be one that a reasonable person in the circumstances would understand as a declaration of intention, purpose, design, goal, or determination to inflict bodily injury on another.” United States v. Heineman, 767 F.3d 970, 972 (10th Cir. 2014). Similarly, the statement must be serious and not “mere political argument, idle talk or jest.” However, a defendant does not need to intend to actually carry out the threat to be convicted of making threatening statements.

The Tenth Circuit has further noted a statement is only a “threat” if it is “directed to a particular individual or group of individuals;” however, the statement need not reach the intended recipient. United States v. Tinoco, 730 Fed.Appx. 581, 585 (10th Cir. 2018) (affirming conviction despite the defendant’s Facebook post failing to reach the victim). Rather, the Tenth Circuit considers “whether those who hear or read the threat reasonably consider that an actual threat has been made” and whether the defendant “intended the recipient to feel threatened.” United States v. Wheeler, 776 F.3d 736, 743 (10th Cir. 2015). See also Tinoco, 730 Fed.Appx. at 585 (while the defendant argued he did not intend to place the victims in fear, and the Facebook posts failed to reach the threatened parties, the defendant’s conviction was affirmed because a border patrol agent testified he took the statements seriously, and the defendant admitted that people who received his statements would have felt threatened).

Colorado state courts and the Tenth Circuit have interpreted internet threats in slightly different ways over the years. However, in both state and federal court, you can be charged and convicted of making true threats based on social media posts even if the intended recipient never sees the post and even if you have no intention of carrying out the threat.

           Contact the attorneys at 2nd-Chair and Meilstrup & Brown if you have questions about the evolving landscape of criminal prosecutions involving true threats.