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What mental state is required for making a prohibited “true threat”?

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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

It will be a short installment this week, because at their last conference, the justices disposed of only one relist, and added only one. The court dismissed the appeal in Brooks v. Abbott, involving a Texas state legislative redistricting dispute. Because the court had mandatory appellate jurisdiction over that matter, that likely reflects the court’s conclusion that, as the state argued, the appeal was untimely. The challengers had 30 days to appeal, and while they filed within 30 days of when the lower court issued its opinion, it did not file within 30 days of when that court took the action the challengers sought to appeal.

This week’s one new relist is something of a sequel. It is well known that the First Amendment does not protect speech that constitutes a “true threat.” But the court has never said all that clearly what a “true threat” is. The closest the court has come is Virginia v. Black, where the court wrote that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.” The court granted review in Elonis v. United States to resolve an acknowledged circuit split “on the question whether proof of a true threat requires proof of a subjective intent to threaten,” or whether it is enough that an “objectively reasonable person would view [the] message as [a] serious expression of intent to harm.”

The court ultimately decided Elonis on narrow statutory grounds rather than constitutional ones, holding that “a guilty mind is a necessary element” of the federal threat statute. (Disclosure: I represented Anthony Elonis in that case.) Justices Samuel Alito and Clarence Thomas wrote separate opinions criticizing the majority for not resolving the constitutional question. In the years since, Thomas and Justice Sonia Sotomayor have written opinions respecting denial of certiorari arguing the court should “decide precisely what level of intent suffices under the First Amendment.”

That brings us to this week’s new relist: Counterman v. Colorado. Over the course of two years, petitioner Billy Raymond Counterman sent a number of Facebook messages to C.W., a professional musician, which she found threatening. (Another disclosure: I represent Counterman.) Examples include “Fuck off permanently,” “How can I take your interest in me seriously if you keep going back to my rejected existence?,” and “You’re not being good for human relations. Die. Don’t need you.” C.W. never responded to Counterman’s messages, and blocked him, but he friended her under other names to continue messaging her. Counterman was arrested and convicted under a Colorado law that prohibits “mak[ing] any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress.”

Counterman argued at his criminal trial that while he was concededly “annoying” and “weird,” it was because he was mentally ill and not because he was trying to distress C.W. The prosecution, correctly summarizing Colorado state law, said that Counterman’s mental state was irrelevant: It was enough if a reasonable person would view his statements as threatening. Counterman was convicted and sentenced to four and a half years in prison. The Colorado court of appeals affirmed, and the state supreme court denied review.

In his petition, Counterman argues, supported by two amici, that there continues to be a conflict among the lower courts on an issue that the court deemed certworthy in Elonis. The state opposes certiorari, arguing that the split is “lopsided” and that the case is an unsuitable vehicle because Counterman might have been convicted for physical surveillance of C.W., which Counterman disputes.

We should have a better idea soon whether the court is inclined to take the Elonis issue up again.

Until next time, stay safe!

New Relist

Counterman v. Colorado, 22-138 
Issue: 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.
(relisted after the Nov. 18 conference)

Returning Relist

Escobar v. Texas, 21-1601
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among the counsel to petitioner in this case.
Issue: Whether the Texas Court of Criminal Appeals erred in holding that the prosecution’s reliance on admittedly false DNA evidence to secure petitioner’s conviction and death sentence is consistent with the due process clause of the 5th Amendment because there is no reasonable likelihood that the false DNA evidence could have affected the judgment of the jury.
(relisted after the Nov. 4, Nov. 10 and Nov. 18 conferences)

Recommended Citation: John Elwood, What mental state is required for making a prohibited “true threat”?, SCOTUSblog (Nov. 30, 2022, 11:01 AM),