Counterman v. Colorado, USSC No. 22-183, 6/27/2023; Scotusblog page (with links to briefs and commentary)
In a case with possible implications for Wisconsin law, SCOTUS holds that in a criminal prosecution involving “true threats,” the State must prove the person “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
Counterman stalked a local musician by sending her “hundreds” of messages over Facebook. (p.1). Based on the content of some of his messages, the victim believed that her life was in danger. (p.2). Counterman was then prosecuted under a state statute which made 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.” (Id.). (cleaned up). Counterman asserted that this prosecution was barred by the First Amendment and, after a series of defeats in State court, his case reaches SCOTUS, which reverses. (p.3).
SCOTUS begins by recapping relevant First Amendment principles: (1) “True threats of violence, everyone agrees, lie outside the bounds of the First Amendment’s protection.” (p.4). (2) “And a statement can count as such a threat based solely on its objective content.” (Id.). However, SCOTUS holds that, in order to prosecute a person criminally for making “true threats,” the State must still prove the existence of mens rea, as to hold otherwise would “chill protected, non-threatening speech.” (Id.). The Court requires such a showing to protect against the possibility that a speaker, uncertain of whether their conduct leads to criminal liability, will engage in “self-censorship” that, in fact, prevents them from fully exercising their First Amendment rights. (p.7).
However, SCOTUS is clear that the First Amendment does not require an onerous subjective standard. Instead, it holds that a recklessness standard is sufficient to offer “breathing space” for protected speech “without sacrificing too many of the benefits of enforcing laws against true threats.” (p.14). Thus, the State must prove that the “speaker is aware that others could regard his statements as threatening violence and delivers them anyway.” (p.11). (Cleaned up.).
The long and the short of it for Wisconsin practitioners is that, if you have case–like a disorderly conduct prosecution–based solely on threatening speech, the prosecution must comply with Counterman’s mens rea requirement; accordingly, attorneys are encouraged to proactively raise the issue via a motion in limine or a modified jury instruction in appropriate cases.
