Amicus Curiae Brief — Billy Raymond Counterman, Petitioner v. Colorado
Supreme Court briefSep 12, 2022
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No. 22-138
In The
Supreme Court of the United States
BILLY RAYMOND COUNTERMAN,
v.
COLORADO,
Petitioner,
Respondent.
On Petition for a Writ of Certiorari to the
Colorado Court of Appeals,
Division II
BRIEF OF THE RUTHERFORD INSTITUTE
AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
John W. Whitehead
Counsel of Record
William E. Winters
THE RUTHERFORD INSTITUTE
109 Deerwood Road
Charlottesville, VA 22911
(434) 978-3888
legal@rutherford.org
Counsel for Amicus Curiae
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ......................................................... 2
ARGUMENT................................................................ 4
I.
THE COURT SHOULD ADDRESS PERVASIVE
CONFUSION OVER THE “TRUE THREATS”
EXCEPTION TO THE FIRST AMENDMENT ................. 4
A. The Law Governing The “True
Threats” Exception Is In Disarray,
Threatening Liberty ....................................... 4
B. This Is The Right Vehicle For
Clarifying The “True Threats”
Exception ........................................................ 9
II. THE COURT SHOULD EMPHASIZE THAT THE
“TRUE THREATS” EXCEPTION IS NARROW ............. 11
A. The “True Threats” Exception Is
Narrow .......................................................... 11
B. Requiring Both Objective And
Subjective Analyses Will Keep The
“True Threats” Exception Narrow
And Safeguard Liberty ................................. 13
III. THE COURT’S GUIDANCE IS REQUIRED TO
PREVENT THE CHILLING OF PROTECTED
SPEECH................................................................. 15
ii
TABLE OF CONTENTS—Continued
Page
A. This Case Implicates The Growing
Concerns Over The Chilling Of
Online Speech ............................................... 16
B. Neither The Objective Standard Or
the Subjective Standard Alone
Satisfies Due Process ................................... 18
C. Both Objective And Subjective
Analyses Are Needed To Protect Free
Expression .................................................... 21
CONCLUSION .......................................................... 24
iii
TABLE OF AUTHORITIES
CASES
Pages
Abrams v. United States, 250 U.S. 616 (1919) ......... 15
Arizona Free Enterprise Club’s Freedom Club
PAC v. Bennett, 564 U.S. 721 (2011) ............ 15, 22
Ashcroft v. ACLU, 535 U.S. 564 (2002) ...................... 5
Ashcroft v. ACLU, 542 U.S. 656 (2004) ...................... 2
Ashcroft v. Free Speech Coalition, 535 U.S.
234 (2002) ............................................................ 14
Brandenburg v. Ohio, 395 U.S. 444 (1969) .............. 12
Chaplinsky v. New Hampshire, 315 U.S. 568
(1942) ................................................................. 7, 8
Cohen v. California, 403 U.S. 15 (1971) ..................... 9
Colorado v. Counterman, 497 P.3d 1039 (Colo. App. 2021) .......................................... 19, 20, 21
Elonis v. United States, 135 S. Ct. 2001
(2015) ........................................................... passim
FCC v. Fox Television Stations, Inc., 567 U.S.
239 (2012) ............................................................ 18
FEC v. Wisconsin Right To Life, Inc., 551
U.S. 449 (2007) .................................. 12, 15, 21, 22
Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974) ..................................................................... 8
Gooding v. Wilson, 405 U.S. 518 (1972) ................... 17
Grayned v. City of Rockford, 408 U.S. 104
(1972) ................................................................... 18
Hamling v. United States, 418 U.S. 87 (1974) ........... 8
iv
TABLE OF AUTHORITIES—Continued
Pages
Hustler Magazine, Inc. v. Falwell, 485 U.S.
46 (1988) ................................................................ 8
Illinois ex rel. Madigan v. Telemarketing
Associates, Inc., 538 U.S. 600 (2003) .................. 23
Jacobellis v. Ohio, 378 U.S. 184 (1964) ...................... 9
Melugin v. Hames, 38 F.3d 1478 (9th Cir.
1994) .................................................................... 21
Miller v. California, 413 U.S. 15 (1973) ........... 8, 9, 16
Minnesota Voters Alliance v. Mansky, 138 S.
Ct. 1876 (2018) ...................................................... 7
New York Times Co. v. Sullivan, 376 U.S.
254 (1964) .................................................... 5, 8, 16
New York v. Ferber, 458 U.S. 747 (1982) ........... 16, 17
Packingham v. North Carolina, 137 S. Ct.
1730 (2017) .............................................. 10, 11, 17
Pennsylvania v. Knox, 647 Pa. 593, 190 A.3d
1146 (2018) .......................................................... 21
Perez v. Florida, 137 S. Ct. 853 (2017) ....................... 9
R.A.V. v. City of St. Paul, 505 U.S. 377
(1992) ................................................... 2, 5, 7, 9, 23
Reno v. ACLU, 521 U.S. 844 (1997) ...................... 8, 17
Riley v. National Federation of the Blind of
North Carolina, Inc., 487 U.S. 781 (1988) ..... 7, 16
Rosenbloom v. Metromedia, Inc., 403 U.S. 29
(1971) ..................................................................... 8
Snyder v. Phelps, 562 U.S. 443 (2011) ................ 12, 23
v
TABLE OF AUTHORITIES—Continued
Pages
Texas v. Johnson, 491 U.S. 397 (1989) ......... 12, 18, 22
United States v. Alvarez, 567 U.S. 709
(2012) ......................................................... 5, 12, 14
United States v. Cassel, 408 F.3d 622 (9th
Cir. 2005) ......................................................... 7, 17
United States v. Clemens, 738 F.3d 1 (1st Cir.
2013) ...................................................................... 7
United States v. Elonis, 730 F.3d 321 (3d Cir.
2013) .................................................................... 18
United States v. Heineman, 767 F.3d 970
(10th Cir. 2014) ............................................... 7, 10
United States v. Jeffries, 692 F.3d 473 (6th
Cir. 2012) ..................................................... passim
United States v. Parr, 545 F.3d 491 (7th Cir.
2008) ...................................................................... 6
United States v. Sryniawski, No. 21-3487
(8th Cir. Sept. 2, 2022)........................................ 20
United States v. Stevens, 559 U.S. 460 (2010) ..... 4, 12
Virginia v. Black,
538 U.S. 343 (2003) ..................................... passim
West Virginia State Board of Education v.
Barnette, 319 U.S. 624 (1943) ............................. 22
Watts v. United States, 394 U.S. 705
(1969) ........................................................... passim
vi
TABLE OF AUTHORITIES—Continued
Pages
CONSTITUTIONAL AND STATUTORY
PROVISIONS
U.S. Const. amend. I ................................................... 4
Colo. Rev. Stat. § 18-3-602(1)(c) (2020) .................... 18
OTHER AUTHORITIES
Harawa,
Daniel
S.,
Social
Media
Thoughtcrimes, 35 Pace L. Rev. 366
(2014) ................................................................... 10
INTEREST OF AMICUS CURIAE1
The Rutherford Institute is a nonprofit civil liberties organization headquartered in Charlottesville,
Virginia. Founded in 1982 by its president, John W.
Whitehead, the Institute provides legal assistance at
no charge to individuals whose constitutional rights
have been threatened or violated and educates the
public about constitutional and human rights issues
affecting their freedoms. The Rutherford Institute
works tirelessly to resist tyranny and threats to
freedom by seeking to ensure that the government
abides by the rule of law and is held accountable
when it infringes on the rights guaranteed by the
Constitution and laws of the United States.
The Rutherford Institute is interested in this
case because it touches on core questions of individual liberty that the First Amendment was created to
protect and preserve. Because the Bill of Rights
serves as a safeguard against government excess,
The Rutherford Institute respectfully submits that
the Court should grant the petition and reverse the
Colorado Court of Appeals.
1 Counsel of record for both parties received timely notice
of The Rutherford Institute’s intention to file this amicus curiae
brief in accordance with Rule 37.2(a), and both parties consented in writing. No counsel for a party authored this brief in
whole or in part, and no party or counsel for a party made a
monetary contribution intended to fund the preparation or
submission of this brief. No person or entity other than Amicus
Curiae, its members, or its counsel made a monetary contribution to this brief’s preparation or submission.
2
INTRODUCTION AND SUMMARY
OF ARGUMENT
“Content-based prohibitions, enforced by severe
criminal penalties, have the constant potential to be
a repressive force in the lives and thoughts of a free
people.” Ashcroft v. ACLU, 542 U.S. 656, 660 (2004).
The Constitution’s protection of free speech is accordingly at its highest when government attempts to
prosecute someone for his spoken words. Although
this Court has recognized exceptions to that bedrock
rule, it has equally recognized that they must be
clearly delineated and narrowly circumscribed to
avoided chilling protected speech. E.g., R.A.V. v.
City of St. Paul, 505 U.S. 377, 399 (1992). Nonetheless, the state of the law with respect to the exception at issue—which allows the state to impose criminal liability for “true threats”—is hopelessly muddled.
The decision below is a regrettable consequence
of that confusion. Petitioner was tried and convicted
for sending messages over Facebook which the recipient and court construed as threatening. Lower
courts are divided on whether such behavior can be
criminalized without evidence that the speaker subjectively intended for the speech to be an actual
threat. This lack of clarity urgently requires this
Court’s attention.
Amicus offers three basic points.
First, divisions among the lower courts over the
“true threats” doctrine are particularly dangerous to
liberty and cry out for this Court’s review. Courts
have adopted divergent standards for determining
when speech is an unprotected “true threat.” And
3
this Court has issued only two opinions on the issue,
the last one over 15 years ago (and a fractured one at
that). The very existence of ambiguity over whether
and when the government may criminally prosecute
someone for the content of their speech is a serious
threat to liberty. The situation is more alarming
given that the Nation is undergoing a communications revolution, driven by unprecedented new forms
of online expression—and unprecedented new attempts by government to monitor and restrict such
expression. This case is a good vehicle to set clear,
badly-needed boundaries on government authority to
limit online expression through criminal prosecution.
Second, in clarifying the law, this Court should
emphasize that the “true threats” exception, just like
obscenity, defamation, and other exceptional categories of unprotected speech, is an exceedingly narrow
carveout from the constitutional norm. The First
Amendment favors more speech, not less; and the
government bears a heavy burden when it seeks to
proscribe categories of speech. To keep the “true
threats” exception narrow, the Court should confirm
what its decisions already suggest: for the exception
to apply, the targeted speech must be both objectively threatening and subjectively intended as a threat.
Third, the Court’s guidance is necessary to avoid
chilling protected expression.
This Court’s
longstanding concern with government action that
might chill protected artistic or political expression is
implicated here, And the particular error here further exacerbates that risk: By adopting an objectiveonly test, the Colorado Court of Appeals embraced a
rule which fails to protect defendants who are prose-
4
cuted for their speech, and can leave some controversial speakers unprotected even with respect to political or artistic expression.
Accordingly, the Court should grant the petition
for certiorari and revisit its “true threats” jurisprudence.
ARGUMENT
I.
THE COURT SHOULD ADDRESS PERVASIVE CONFUSION OVER THE “TRUE THREATS” EXCEPTION
TO THE FIRST AMENDMENT
“Congress shall make no law … abridging the
freedom of speech.” U.S. Const. amend. I. At its
fundamental level, the First Amendment prohibits
the state from imprisoning people for the content of
their speech. Yet the courts are deeply divided over
the scope of the judicially-recognized exception permitting prosecution for “true threats.” Such confusion would be intolerable in any circumstance, but it
is especially intolerable at this moment, as governments seek to control and regulate new forms of
online expression. Fresh guidance from this Court
on the “true threats” exception is urgently needed—
and this case presents a good vehicle for providing
such guidance.
A. The Law Governing The “True Threats”
Exception Is In Disarray, Threatening
Liberty
“As a general matter, the First Amendment
means that government has no power to restrict expression because of its message, its ideas, its subject
matter, or its content.” United States v. Stevens, 559
5
U.S. 460, 468 (2010) (quoting Ashcroft v. ACLU, 535
U.S. 564, 573 (2002)). This Court has identified a
few very narrow exceptions—“certain well-defined
and narrowly limited classes of speech,” such as obscenity and defamation—that may be punished
without offending the First Amendment. R.A.V. v.
City of St. Paul, 505 U.S. 377, 399 (1992) (internal
quotation marks omitted); accord United States v.
Alvarez, 567 U.S. 709, 716-717 (2012) (listing the
“few historic and traditional categories” of expression
that may be subject to content-based regulations
(cleaned up)).
In Watts v. United States, the Court postulated
that one of those narrowly limited classes of speech
might be so-called “true threats.” 394 U.S. 705, 708
(1969) (per curiam). But the Court did not find the
speech at issue in Watts—a statement made at a Vietnam War protest that the petitioner, if drafted,
would aim his rifle at President Johnson—was a true
threat. Id. at 706. Rather, it concluded that the petitioner’s performance, even if “a kind of very crude[,]
offensive method of stating a political opposition to
the President,” could not reasonably be interpreted
as a threat. Id. at 708 (cleaned up). A “‘vehement,
caustic, and [an] unpleasantly sharp attack[] on government,’” the Court held, is still not a true threat.
Id. (quoting New York Times Co. v. Sullivan, 376
U.S. 254, 270 (1964)). Accordingly, the Court reversed the petitioner’s conviction. Id.
Decades passed before this Court revisited the
“true threats” exception in Virginia v. Black, 538
U.S. 343 (2003). In a fractured decision, the Court
struck down state action as inconsistent with the
First Amendment, holding unconstitutional a Virgin-
6
ia statute treating the public burning of a cross as
“‘prima facie evidence of an intent to intimidate.’”
Id. at 348. Justice O’Connor’s plurality opinion explained that cross-burning could fall within the category of “true threats” unprotected by the First
Amendment, id. at 360, but that the statute went too
far by presuming that cross-burning is “always intended to intimidate,” id. at 365.
More recently, the Court had the opportunity to
clarify some aspects of the “true threats” exception in
Elonis v. United States, 135 S. Ct. 2001 (2015), which
considered whether the petitioner’s Facebook posts,
including posts involving imagined violence against
his ex-wife, violated the federal threats statute. 135
S. Ct. at 2004. But the Court resolved that case entirely on statutory grounds, id. at 2010, providing no
further guidance as to what constitutes a constitutionally-unprotected “true threat.”2
Together, Watts and Black indicate that, at a
minimum, a “true threat” must be both objectively
threating to a reasonable listener and subjectively
intended as such by the speaker. See infra Part II.A;
see also United States v. Jeffries, 692 F.3d 473, 485
(6th Cir. 2012) (Sutton, J., dubitante) (suggesting
that interpretation with respect to the federal threat
statute); United States v. Parr, 545 F.3d 491, 500
2 The Court in Elonis held only that 18 U.S.C. § 875(c) re-
quires a mens rea greater than negligence, declining to consider
whether recklessness is sufficient. 135 S. Ct. at 2012-13. In
that way, too, the Court refrained from clarifying the laws
criminalizing threatening speech. See id. at 2014 (Alito, J.,
concurring in part and dissenting in part) (failure to articulate
clear mens rea standard “will have regrettable consequences”);
id. at 2028 (Thomas, J., dissenting) (criticizing failure “to announce a clear rule”).
7
(7th Cir. 2008) (suggesting speech ‘‘must objectively
be a threat and subjectively be intended as such’’ but
that, post-Black, the rule is “unclear”). Yet with virtually no guidance from this Court on the nature of
the “true threats” exception for over a decade, state
high courts and federal courts of appeals have become deeply divided on even the most basic questions
regarding the exception’s scope. Most courts apply
some objective reasonable listener standard. See,
e.g., Jeffries, 692 F.3d at 478 (majority opinion). A
minority employ a purely subjective test. E.g., United States v. Heineman, 767 F.3d 970, 978 (10th Cir.
2014). Further divisions exist on either side of the
objective/subjective divide.3
There is thus significant confusion over when
government may prosecute individuals for their
speech. Such ambiguity in the criminal law is dangerous to liberty, as it requires ordinary citizens to
decipher “riddles that even … top lawyers struggle to
solve.” Minnesota Voters Alliance v. Mansky, 138 S.
Ct. 1876, 1891 (2018). Indeed, such ambiguity contravenes the definitional requirement that, for a category of speech to fall outside of the First Amendment’s broad ambit, it must be “‘well-defined’” and
“‘narrowly limited.’” R.A.V., 505 U.S. at 399 (quoting
Chaplinsky v. New Hampshire, 315 U.S. 568, 571572 (1942)); see also Riley v. National Fed’n of the
Blind of N.C., Inc., 487 U.S. 781, 800 (1988) (“government [must] not dictate the content of speech ab3 Compare
United States v. Clemens, 738 F.3d 1, 11 (1st
Cir. 2013) (some courts apply a subjective intent standard only
to communication of the threat, but not the threat itself), with
United States v. Cassel, 408 F.3d 622, 632-633 (9th Cir. 2005)
(requiring “that the speaker subjectively intended the speech as
a threat”).
8
sent compelling necessity, and then, only by means
precisely tailored”).
The “true threats” exception stands in contrast to
other categories of unprotected speech that have
benefited from this Court’s sustained attention. The
Court worked hard to define the limits of the obscenity exception, recognizing the “strain” placed “on
both state and federal courts” by confusion in the
law. Miller v. California, 413 U.S. 15, 20-23, 24, 29
(1973); see also Hamling v. United States, 418 U.S.
87, 123 (1974) (setting forth scienter requirement for
obscenity exception). As new questions about the obscenity exception arose in the context of early online
speech, the Court took those up, too. E.g., Reno v.
ACLU, 521 U.S. 844, 868-869 (1997) (full First
Amendment protection accorded to “the vast democratic forums of the Internet”).
Similarly, this Court’s cases evince a long “struggle[] … to define the proper accommodation between
the law of defamation and the … First Amendment,”
Gertz v. Robert Welch, Inc., 418 U.S. 323, 325 (1974).
After the “actual malice” standard announced in New
York Times Co. v. Sullivan divided the Court, see
Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971),
the Court revisited the issue just three years later,
Gertz, 418 U.S. at 333-339, 347. And because confusion over the scope of the defamation exception persisted, the Court repeatedly returned to the issue.
See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S.
46, 50 (1988) (parody protected and not subject to
defamation exception).4
4 Likewise, with respect to the amorphous “fighting words”
exception, see Chaplinsky, 315 U.S. at 572, the Court limited
9
Confusion over the “true threats” exception presents the same significant dangers to liberty as confusion over those other exceptions to the First
Amendment—and the same imperative to remedy
such confusion and reaffirm First Amendment
rights. Defining the scope of First Amendment exceptions with precision “may not be an easy road,”
but it is part of the Court’s “‘duty to uphold … constitutional guarantees.’” Miller, 413 U.S. at 29 (quoting
Jacobellis v. Ohio, 378 U.S. 184, 187-188 (1964)
(opinion of Brennan, J.)).
B. This Is The Right Vehicle For Clarifying
The “True Threats” Exception
This case is a good vehicle for the Court to consider the scope of the “true threats” exception and to
provide badly needed guidance for the lower courts
regarding when government may prosecute people
based on the substance of their expression.
First, this case raises the question dividing state
and federal circuit courts, namely the nature of the
“true threats” test and its objective/subjective components. One aspect of that question is the level of
mens rea required to render allegedly threatening
speech unprotected, which this Court has flagged as
worthy of consideration but not yet addressed by applying First Amendment principles, see Elonis, 135
S. Ct. at 2004; see also Perez v. Florida, 137 S. Ct.
853, 855 (2017) (Sotomayor, J., concurring) (urging
the Court to decide the constitutional “question [it]
avoided … in Elonis”). Another aspect is whether
that exception’s scope, see, e.g., Cohen v. California, 403 U.S.
15, 19-20 (1971), and ultimately reduced it to near nonexistence, e.g., R.A.V., 505 U.S. at 383-384.
10
the speech at issue must be objectively threatening,
subjectively intended as such, or both. Compare,
e.g., Jeffries, 692 F.3d at 478, with, e.g., Heineman,
767 F.3d at 978, and Jeffries, 692 F.3d at 485 (Sutton, J., dubitante). The decision by the Colorado
Court of Appeals implicates both issues. Granting
certiorari would allow the Court to resolve fundamental, unsettled, and urgent questions about the
“true threats” exception.
Second, this case is an especially good vehicle because it arises in the context of online speech. As the
Court recently recognized, “the ‘vast democratic forums of the Internet’” are now “the most important
places … for the exchange of views.” Packingham v.
North Carolina, 137 S. Ct. 1730, 1735 (2017). And
social media sites like Facebook and YouTube are
the most important and broadly used channels of
online communication and expression today, used to
“debate religion and politics,” “look for work,” and
“petition … elected representatives.” Id. at 17351736; Elonis, 135 S. Ct. at 2004-2005 (discussing use
of Facebook); see also Harawa, Social Media
Thoughtcrimes, 35 Pace L. Rev. 366, 366 (2014) (“Social media is a necessary part of modern interaction.”).
The Internet provides a medium for communication, expression, and commentary to flourish at a
historically unprecedented scale; anyone with a computer or smartphone can be a publisher or a performer. But as the Internet changes the fabric of
American life, government has tried and will keep
trying to monitor, restrict, and prosecute expression
on the Internet in myriad new ways. See, e.g., Packingham, 137 S. Ct. at 1737 (state law forbidding cer-
11
tain people from speaking through social media).
And the Internet provides those who would police
speech with a target-rich environment; indeed, in
Packingham and Elonis, law enforcement officials
actively surveilled social media for speech to target.
Id. at 1734; Elonis, 135 S. Ct. at 2006.
As the Internet enhances our ability to communicate and express our views, it also enhances the
government’s ability to police our communication
and expression. Affirming that the First Amendment’s protections apply fully to online expression is
an independent reason to take up this case.
II. THE COURT SHOULD EMPHASIZE THAT THE
“TRUE THREATS” EXCEPTION IS NARROW
The Court should grant the petition to answer
urgent questions regarding the “true threats” exception in a manner that expands, rather than contracts, individual liberty. The “true threats” exception must remain an exceedingly narrow carveout to
the broad protections of the First Amendment. Requiring courts to consider targeted speech both objectively and subjectively is one important way to ensure that result. By contrast, the test employed by
the Colorado Court of Appeals works an unwarranted and dangerous expansion of the “true threats” exception.
A. The “True Threats” Exception Is Narrow
The constitutional right to free speech is an essential aspect of American liberty. Accordingly, content-based restrictions on speech are “presumed invalid,” and the burden is always on the government
to show that a speech regulation falls within the con-
12
fined set of categories that may be subject to contentbased prosecution. E.g., Alvarez, 567 U.S. at 716-717
(quotation marks omitted). Close questions, moreover, must be resolved in favor of more expression, not
less; this Court “give[s] the benefit of the doubt to
speech, not censorship.” FEC v. Wisconsin Right To
Life, Inc., 551 U.S. 449, 482 (2007) (“WRTL”); see also, e.g., Stevens, 559 U.S. at 470 (“The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”).
Under those principles, this Court has struck
down content-based speech restrictions in numerous
contexts, even in cases involving repulsive, distasteful, or terrifying speech. See, e.g., Alvarez, 567 U.S.
at 729-730 (false statements about receiving military
honors); Snyder v. Phelps, 562 U.S. 443, 460 (2011)
(picketing of military funerals, which was “certainly
hurtful”); Stevens, 559 U.S. at 465-466 (depictions of
animal cruelty, including “crush videos” that showed
“women slowly crushing animals to death”); Texas v.
Johnson, 491 U.S. 397, 419-421 (1989) (flag desecration, despite the “flag’s deservedly cherished place in
our community”); Brandenburg v. Ohio, 395 U.S.
444, 447 (1969) (Ku Klux Klan rally).
The Court has been similarly skeptical of efforts
to prosecute supposedly threatening speech. In
Watts, the Court reversed the petitioner’s conviction,
holding that the government may theoretically prohibit “true threats,” but only after a thorough consideration of context, set against the presumption that
crude, offensive, abusive, inexact, or unpleasant
rhetoric is still protected. 394 U.S. at 707-708. Later, the Court reaffirmed the narrowness of the “true
13
threats” exception in Black, highlighting that even
when speech is overwhelmingly viewed as discomfiting or offensive, 538 U.S. at 358, the “First Amendment does not permit … shortcut[s]” in determining
that it is a true threat, id. at 367 (plurality op.). Going further, Justice O’Connor explained for the plurality that, to fall within the “true threats” exception,
the speaker also needed to act with specific intent to
intimidate. See id. at 359, 366-367. Both Watts and
Black demand a searching, detailed inquiry before
declaring that speech is unprotected by the First
Amendment and subject to criminal sanction.
B. Requiring Both Objective And Subjective Analyses Will Keep The “True
Threats” Exception Narrow And Safeguard Liberty
Together, Watts and Black provide a strong
foundation for holding that (at a minimum) a true
threat must be both objectively threatening to a reasonable listener and subjectively intended as such by
the speaker. Accord Jeffries, 692 F.3d at 485 (Sutton, J., dubitante). The Court in Watts looked to objective factors—the context in which the statement
was made, its conditional nature, and the reaction of
the audience—to hold that the speech at issue was
not a threat. 394 U.S. at 708; see also Elonis, 135 S.
Ct. at 2027 (Thomas, J., dissenting) (“Watts continued the long tradition of focusing on objective criteria[.]”). And the Court in Black repeatedly stressed
that a true threat requires threatening intent on the
part of the speaker. 538 U.S. at 359 (true threats
“encompass those statements where the speaker
means to communicate a serious expression of an intent to commit” violence (emphasis added)).
14
Embracing that reasoning would help ensure
that the “true threats” exception remains narrow.
Neither Watts or Black considered objective or subjective analysis to the exclusion of the other. And
requiring both analyses—considering both the subjective intent of the defendant and also the objective
seriousness of the purported “threat”—would set an
appropriately high bar for the prosecution and imprisonment of people solely for the content of their
speech. See Alvarez, 567 U.S. at 726 (noting government’s “heavy burden” in seeking to regulate protected speech). There are numerous “legal standard[s] that contain[] objective and subjective components” across the law, from the Eighth Amendment
to the immigration law’s “well-founded fear” requirement. Jeffries, 692 F.3d at 485-486 (Sutton, J.,
dubitante) (collecting examples). Requiring both objective and subjective components is especially appropriate before someone is locked up for speaking.
E.g., Ashcroft v. Free Speech Coal., 535 U.S. 234, 244
(2002) (“A law imposing criminal penalties on protected speech is a stark example of speech suppression.”).
By contrast, the decision of the Colorado Court of
Appeals will, if allowed to stand, lower the bar that
the government must meet before criminalizing free
expression. It allows for a criminal conviction based
entirely on the listener’s perception of the nature of
the statement, even if the speaker did not intend the
speech to be threatening and did not threaten any
violent or unlawful act. By incorrectly ignoring the
need to prove the defendant’s intent, the court below
“reduces culpability on the all-important element of
the crime to negligence,” see Jeffries, 692 F.3d at 484,
and creates a grave risk that “nonthreatening ideo-
15
logical expression” will be drawn “within the ambit of
the prohibition of intimidating expression,” Black,
538 U.S. at 386 (Souter, J., concurring in part in the
judgment and dissenting in part).
Lowering the bar in this manner would vitiate
the law’s longstanding preference for more speech,
not less. See, e.g., Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 750 (2011)
(“The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding
principle is freedom—the ‘unfettered interchange of
ideas’”); Abrams v. United States, 250 U.S. 616, 630
(1919) (Holmes, J., dissenting) (“[T]he ultimate good
desired is better reached by free trade in ideas[.]”);
accord WTRL, 551 U.S. at 482. Lowering the bar for
invoking the “true threats” exception would endanger free expression at a time of heightened uncertainty regarding online speech in particular, and it
would contravene the reasoning of Watts and Black
as well as fundamental First Amendment principles.
The Court should take up this case to ensure that
the “true threats” exception to the First Amendment
remains narrow.
III. THE COURT’S GUIDANCE IS REQUIRED TO PREVENT THE CHILLING OF PROTECTED SPEECH
The presence or absence of First Amendment
protection has real world effects. Ill-defined categories of criminally-proscribed speech are likely to chill
otherwise protected expression, as speakers who
cannot discern any limiting principle attempt to
steer clear of the criminal law. And the error by the
court below—the adoption of an objective-analysisonly test—exacerbates those chilling effects.
16
A. This Case Implicates The Growing Concerns Over The Chilling Of Protected
Online Speech
Government action that chills free expression is
in “direct contravention of the First Amendment’s
dictates.” Riley, 487 U.S. at 794; see also New York
Times, 376 U.S. at 279 (a rule that “dampens the
vigor and limits the variety of public debate … is inconsistent with the First and Fourteenth Amendments.”). This is especially true when the regulation
at issue chills speech and expression through “‘fear of
criminal sanctions.’” E.g., New York v. Ferber, 458
U.S. 747, 768-69 (1982); see also Black, 538 U.S. at
365 (plurality op.) (challenged statute “chills constitutionally protected political speech because of the
possibility that the Commonwealth will prosecute—
and potentially convict—somebody engaging only in
lawful political speech[.]”). Concerns about chilling
effects are at their zenith when there is a possibility
that government action might stifle artisic or political expression. See, e.g., Miller, 413 U.S. at 22-23
(“[T]he courts must always remain sensitive to any
infringement on genuinely serious literary, artistic,
political, or scientific expression.”).
Criminalizing petitioner’s speech unquestionably
raises the significant risk of chilling other types of
online expression. E.g., Watts, 394 U.S. at 708 (even
“vituperative” language must be interpreted
“‘against the background of a profound national
commitment to the principle that debate on public
issues should be uninhibited, robust, and wideopen’”). Online speech is particularly vulnerable to
the risk of chilling effects. Users of social media
sites such as YouTube and Facebook “employ these
17
websites to engage in a wide array of protected First
Amendment activity on topics ‘as diverse as human
thought.’” Packingham, 137 S. Ct. at 1735-1736
(quoting Reno, 521 U.S. at 870). And the “language
of the political arena . . . is often vituperative, abusive, and inexact.” Watts, 394 U.S. at 708.
The Internet—and in particular social media—is
the largest and most important public forum on the
planet. See Packingham, 137 S. Ct. at 1735 (“[I]n
identifying the most important places (in a spatial
sense) for the exchange of views, today the answer is
clear. It is cyberspace ... and social media in particular.”). And it is also the most easily surveilled. Just
as in Watts, where a federal investigator infiltrated a
public political rally and made an arrest based on offensive political statements, 394 U.S. at 708, law enforcement now infiltrate and monitor political fora on
the Internet. See Packingham, 137 S. Ct. at 1734;
Elonis, 135 S. Ct. at 2006. The ease with which government agents may monitor speech online greatly
magnifies the potential chilling effects caused by confusion over the scope of the “true threats” exception.
Cf. Ferber, 458 U.S. at 768-769 (statutes permitting
punishment of speech must be narrowly drawn to
avoid chill); Gooding v. Wilson, 405 U.S. 518, 521522 (1972) (same).
The confused state of the law further intensifies
those risks. For example, the Ninth and the Third
Circuit have adopted opposing views of what is required to establish a “true threat.” Compare United
States v. Cassel, 408 F.3d 622, 632-33 (9th Cir. 2005)
(requiring proof that the speaker subjectively intended the speech as a threat, and noting that “eight
Justices agreed [in Black] that intent to intimidate is
18
necessary and that the government must prove it”)
with United States v. Elonis, 730 F.3d 321, 331 n.7
(3d Cir. 2013) (“[O]ur test asks whether a reasonable
speaker would foresee the statement would be understood as a threat.”), rev’d on other grounds, 135 S.
Ct. 2001 (2015). The lack of clarity over how the
First Amendment applies makes it likely that the
specter of “criminal threats” liability will chill protected expression.
B. Neither The Objective Standard Or The
Subjective Standard Alone Satisfies Due
Process
The government violates due process when it enacts a criminal law “so vague that it fails to give ordinary people fair notice of the conduct it punishes,
or so standardless that it invites arbitrary enforcement.” Johnson, 576 U.S. at 595. A criminal statute, therefore, must give “persons of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104,
108-09 (1972). Furthermore, the statute must provide sufficiently clear standards of enforcement such
that “those enforcing the law do not act in an arbitrary or discriminatory way.” FCC v. Fox Television
Stations, Inc., 567 U.S. 239, 253 (2012).
The Colorado statute here, Colo. Rev. Stat. § 183-602(1)(c) (2020), in requiring only an objective
analysis of the perceived threatening nature of a defendant’s statements, violates these fundamental
due process protections. The statute fails to provide
sufficient notice of when one’s speech crosses over
from permissible expression protected by the First
Amendment to impermissible true threats. But re-
19
quiring analysis and proof of the speaker’s subjective
intent would reduce the risk of misinterpreting
statements post hoc.
An objective-only analysis approach invites
courts to engage in conjecture and speculation in violation of due process when interpreting the meaning
of the statements, as the Colorado court did here.
Under that approach, the statute does not provide
sufficiently clear standards of enforcement to avoid
arbitrary or discriminatory enforcement. None of
Counterman’s messages expressed any plan or intent
to harm the recipient, Colorado v. Counterman, 497
P.3d 1039, 1044 (Colo. App. 2021), and it cannot be
assumed that Counterman knew the recipient was
fearful or distressed by his online messages rather
than just uninterested or slightly annoyed.
However, the Colorado Court of Appeals
stretched to extract threatening implications from
ambiguous and “somewhat suggestive” statements,
such as “You’re not being good for human relations.
Die. Don’t need you,” and “F[**]k off permanently.”
Id. Although acknowledging that the recipient is a
“local public figure” and that Counterman’s messages
“don’t explicitly threaten [the recipient’s] life,” the
Colorado Court of Appeals engaged in a psychological
type of analysis, delving into what it thought each of
Counterman’s statements really meant while still
indicating its uncertainty by repeatedly using terms
like “imply,” “somewhat suggestive,” “reflect a feeling
of,” “indicate,” and “contributed to an impression
that.” Id. at 1047-48. Even though this Court explained in Black that “’[t]rue threats’ encompass
those statements where the speaker means to communicate a serious expression of an intent to commit
20
an act of unlawful violence,” and “[i]ntimidation … is
a type of true threat, where a speaker directs a
threat … with the intent of placing the victim in fear
of bodily harm or death,” 538 U.S. at 359-60 (emphasis added), the Colorado court concluded that Counterman’s messages “imply a disregard for [the recipient’s] life and a desire to see her dead,” and were
thus true threats rather than mere expressions of
frustration. Counterman, 497 P.3d at 1047-48.
While the government clearly has a valid interest
in protecting people from stalking, Colorado has created and applied a statute so broad and vague in its
scope that it can criminalize a wide range of protected speech and activity. For example, someone could
write these two very same phrases to their congressional representative out of frustration from the representative’s lack of effort (“Die. Don’t need you”—
i.e., you’re not serving any purpose or doing your job)
or support of an unfavorable bill (“F[**]k off permanently”) without subjectively intending any threat of
bodily harm or unlawful activity. But if that representative was emotionally distressed by those messages, then the sender could be found in violation of
Colorado’s statute and sentenced to years in prison
because their representative was disturbed by receiving harsh criticism.5 Given the severe nature of
criminal sanctions and the chilling effect they have
on protected speech, constitutional safeguards
5 A person was convicted of cyberstalking for sending
emails to a political candidate, which was then reversed for insufficient evidence “when the statute is interpreted in a way
that is consonant with the First Amendment.” United States v.
Sryniawski, No. 21-3487, slip op. at 5 (8th Cir. Sept. 2, 2022).
21
should be put in place to at least require an inquiry
into a defendant’s subjective intent.6
C. Both Objective And Subjective Analyses
Are Needed To Protect Free Expression
This Court has explained that “no reasonable
speaker” would engage in expression that could be
punished by the state when the “only defense to a
criminal prosecution would be that [the speaker’s]
motives were pure.” WRTL, 551 U.S. at 468. The
error committed by courts which adopt a purely subjective intent test for whether speech is an unprotected “true threat”—is likely to chill free expression
for that reason and several others.
First, a subjective-intent-only test makes it
harder for courts of appeals to reject criminal liability for speech that, while controversial or offensive,
is objectively non-threatening. A defendant’s subjective intent is classically a question of fact for a jury.
For subjective-analysis-only courts, like the Ninth
Circuit, whether speech is a “true threat” thus reduces to a factual issue. See, e.g., Melugin v. Hames,
38 F.3d 1478, 1485 (9th Cir. 1994). And factfinding
typically is (and should be) exceedingly difficult to
overturn on appeal. Thus, when courts adopt a subjective-intent-only standard, they effectively insulate
the “true threats” determination from appellate review. See, e.g., Pennsylvania v. Knox, 647 Pa. 593,
190 A.3d 1146 (2018) (treating the subjective intent
6 Even if Counterman’s statements could not be criminally
punished as true threats, he could still possibly be subject to a
protective order, see Counterman, 497 P.3d at 1043, presumably
prohibiting any further communications to the complainant.
22
question as a finding of fact, and asking only whether competent evidence supported it).
Such insulation is dangerous. Courts are the appropriate final arbiters of the scope of the First
Amendment, especially for speakers who are unpopular or lack political power or social capital. Hampering appellate courts’ ability to intercede on behalf
of unpopular or controversial speakers undercuts
free expression and undermines one of the most important functions of judges in a free society: upholding the Bill of Rights against majoritarian encroachment. See, e.g., Arizona Free Enter. Club’s,
564 U.S. at 754 (“[T]he whole point of the First
Amendment is to protect speakers against unjustified government restrictions on speech, even when
those restrictions reflect the will of the majority.”);
Johnson, 491 U.S. at 414 (“If there is a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or disagreeable.”) see also West Virginia State
Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)
(“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities … and to establish them as legal principles to be applied by the courts.”). The deferential
standard of review applicable to findings of fact does
not sufficiently protect someone who faces imprisonment for his speech.
Second, even where a defendant might have
some intent to intimidate, that alone cannot be
enough. Cf. WRTL, 551 U.S. at 468 (subjectiveintent-only test “could lead to the bizarre result that
23
identical [speech] could be protected speech for one
speaker, while leading to criminal penalties for another”). Objective analysis is much better at distinguishing between a genuine threat and protected expression motivated by real pain or anger.
Cf.
Snyder, 562 U.S. 443, 460-61 (“Speech is powerful. It
can stir people to action, move them to tears of both
joy and sorrow, and ... inflict great pain.... [W]e cannot react to that pain by punishing the speaker.”).
Objective analysis thus helps ensure “sufficient
breathing room for protected speech.” Illinois ex rel.
Madigan v. Telemarketing Assocs., Inc., 538 U.S.
600, 620 (2003). By contrast, critical context is rendered largely irrelevant under a subjective-intentonly standard. And all of this is doubly true online,
where background facts may be hard to ascertain,
where content is often designed to titillate and provoke, where hyperbole is common, and where context
is all the more important to grasp the meaning of
disembodied words, images, and media.7
A combined objectivity and subjectivity requirement ensures that only real threats of violence are
subject to criminal sanctions. See Jeffries, 692 F.3d
at 480. It ensures that the “true threats” exception
remains anchored to its ultimate purpose—
protecting listeners from genuine “fear of violence,”
R.A.V., 505 U.S. at 388, while permitting sufficient
“breathing space” for the type of speech the First
7 Moreover, the gap between a speaker’s intentions and their
objective capacity to commit real-world harm becomes a chasm in
the context of online speech. Ugly and offensive forms of provocation—“trolling,” in common parlance—are rampant online. Only
by objectively considering the full context could a court fairly determine whether speech in fact conveys to a reasonable observer
“a serious expression of an intent to commit” violence. Black,
538 U.S. at 359.
24
Amendment intends to protect, Elonis, 575 U.S. at
748. Requiring speech to be both objectively threatening to a reasonable listener and subjectively intended as such will help ensure that the “true
threats” exception does not chill protected expression.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
JOHN W. WHITEHEAD
Counsel of Record
WILLIAM E. WINTERS
THE RUTHERFORD INSTITUTE
109 Deerwood Road
Charlottesville, VA 22911
(434) 978-3888
legal@rutherford.org
Counsel for Amicus Curiae
SEPTEMBER 12, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.