When Free Speech meets Criminal Law: the Supreme Court Clarifies “True Threats”
By JohnEdgett on Jul 6, 2023
The First Amendment to the United States Constitution guarantees, among other rights, that Congress shall make no law “abridging the freedom of speech.” The Federal government and State governments alike are required to follow the First Amendment in enacting and enforcing laws- including criminal laws.
However, certain categories of speech, such as threats to commit violence, are not protected by general principles of freedom of speech and can be criminally punished. In Arizona, for example, it is a class one misdemeanor to threaten or intimidate, by word or conduct, “to cause physical injury to another person or serious damage to the property of another.” A.R.S. § 13-1202(A)(1).
What exactly does the State have to prove to convict a person of this crime? A prior Arizona Court of Appeals decision from 2001 held that the State must prove that a person had made a “true threat,” which meant that “under the circumstances, a reasonable person would foresee that his words would be taken as a serious expression of an intent to inflict bodily harm, and his statements were not the result of mistake, duress, or coercion.” In re Kyle M, 200 Ariz. 447, 452 (App. 2001).
The concept of a “reasonable person” comes up frequently in determining whether someone’s conduct was legal. For example, Arizona’s self-defense laws depend on whether a “reasonable person” would believe that physical force was immediately necessary in the situation. (A.R.S. § 13-404). Such laws require a judge or jury to decide what a hypothetical “reasonable person” would have thought in the situation, and not necessarily what the real person charged with the crime was actually thinking at the time.
A recent United States Supreme Court case addressed whether this standard satisfied the First Amendment in the context of criminal threats. Billy Counterman, a Colorado man, was accused of sending hundreds of Facebook messages to a local singer and musician, some of which were considered threatening. He was prosecuted under a Colorado law which made it a crime to “[r]epeatedly . . . 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.”
After a jury found him guilty as charged, Mr. Counterman appealed his case all the way to the United States Supreme Court, arguing that his prosecution was a violation of the First Amendment because it focused on what a “reasonable person” would have thought about the messages, not what he thought at the time. In a decision released June 27, 2023, the United States Supreme Court agreed, at least in part. Mr. Counterman’s conviction, the Court held, violated the First Amendment because it relied only on the “reasonable person” standard. Counterman v. Colorado, 599 U.S. ____ (2023).
However, the Court did not side with Mr. Counterman completely. The Court held that the government must only show that a person was reckless about whether his words would be interpreted as threats, not that he intended, or knew that they would be. Whether a person’s alleged conduct was negligent, reckless, knowing, or intentional is referred to as their mens rea (mental state) and is usually something the government is required to prove to convict a person of a crime. Whether the government can do so can mean the difference between a guilty or not guilty verdict at a trial.
The Counterman decision is likely to have an impact across the country, including in Arizona, in cases involving alleged threats and other situations where a person’s right to free speech comes up against the criminal law.
If you or a loved one have been charged with a criminal offense, it is important to have an attorney that is up to date on the latest developments in how the Constitution protects those facing criminal charges- and how they might be used to defend your case.