Counterman v. Colorado
| Docket No. | Op. Below | Argument | Opinion | Vote | Author | Term |
|---|---|---|---|---|---|---|
| 22-138 | Colo. App. | Apr 19, 2023 | Jun 27, 2023 | 7-2 | Kagan | OT 2022 |
Holding: To establish that a statement is a "true threat" unprotected by the First Amendment, the state must prove that the defendant had some subjective understanding of the statements' threatening nature, based on a showing no more demanding than recklessness.
Judgment: Vacated and remanded, 7-2, in an opinion by Justice Kagan on June 27, 2023. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined as to Parts I, II, III-A, and III-B. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion, in which Justice Thomas joined.
SCOTUSblog Coverage
- Justices throw out Colorado man's stalking conviction in First Amendment dispute (Amy Howe, June 27, 2023)
- Justices hear "true threat" protected speech case (Amy Howe, April 20, 2023)
- Colorado man's First Amendment challenge will test the scope of protection for threatening speech (Amy Howe, April 18, 2023)
- Court schedules final two argument sessions of 2022-23 term (Amy Howe, January 31, 2023)
- Court grants review in new batch of cases, including dispute on religious rights of employees (Amy Howe, January 13, 2023)
- Relist-palooza: Religious exercise, the False Claims Act, takings clause, RICO, bank secrecy, and more (John Elwood, January 11, 2023)
- Federal ban on inducing unlawful immigration for financial gain may get another Supreme Court test (John Elwood, December 7, 2022)
- What mental state is required for making a prohibited "true threat"? (John Elwood, November 30, 2022)
- Two petitions probe permissible evidence in convictions and sentencing (Kalvis Golde, September 2, 2022)
| Date | Proceedings and Orders |
|---|---|
| 06/27/2022 | Application (21A873) to extend the time to file a petition for a writ of certiorari from July 10, 2022 to September 8, 2022, submitted to Justice Gorsuch. |
| 06/29/2022 | Application (21A873) granted by Justice Gorsuch extending the time to file until August 9, 2022. |
| 08/09/2022 | Petition for a writ of certiorari filed. (Response due September 12, 2022) |
| 08/17/2022 | Motion to extend the time to file a response from September 12, 2022 to October 12, 2022, submitted to The Clerk. |
| 08/18/2022 | Motion to extend the time to file a response is granted and the time is extended to and including October 12, 2022. |
| 09/12/2022 | Brief amicus curiae of Cato Institute filed. |
| 09/12/2022 | Brief amicus curiae of The Rutherford Institute filed. |
| 10/12/2022 | Brief of respondent Colorado in opposition filed. |
| 10/26/2022 | Reply of petitioner Billy Raymond Counterman filed. |
| 11/02/2022 | DISTRIBUTED for Conference of 11/18/2022. |
| 11/28/2022 | DISTRIBUTED for Conference of 12/2/2022. |
| 12/05/2022 | DISTRIBUTED for Conference of 12/9/2022. |
| 01/03/2023 | DISTRIBUTED for Conference of 1/6/2023. |
| 01/09/2023 | DISTRIBUTED for Conference of 1/13/2023. |
| 01/13/2023 | Petition GRANTED. |
| 01/31/2023 | SET FOR ARGUMENT on Wednesday, April 19, 2023. |
| 02/08/2023 | Record requested from the Court of Appeals of Colorado. |
| 02/21/2023 | Register of actions and briefs received from Court of Appeals of Colorado. Record request also transmitted to trial court. |
| 02/22/2023 | Brief of petitioner Billy Raymond Counterman filed. |
| 02/22/2023 | Joint appendix (3 volumes) filed. (Statement of costs filed) |
| 02/28/2023 | Electronic record transmitted from Arapahoe Combined Court (Colorado). |
| 02/28/2023 | Brief amici curiae of Cato Institute, et al. filed. |
| 03/01/2023 | Brief amici curiae of Southwestern law student Elena Cordonean, et al. filed. |
| 03/01/2023 | Brief amicus curiae of Foundation for Individual Rights and Expression filed. |
| 03/01/2023 | Brief amicus curiae of Reporters Committee for Freedom of the Press filed. |
| 03/01/2023 | Brief amici curiae of Electronic Frontier Foundation, et al. filed. |
| 03/01/2023 | Amicus brief of American Civil Liberties Union, et al. In Support of Petitioner. not accepted for filing (Corrected version to be submitted--March 03, 2023). |
| 03/01/2023 | Brief amici curiae of American Civil Liberties Union, et al. filed (Mar. 8, 2023). |
| 03/01/2023 | Brief amicus curiae of Human Rights for Kids filed. |
| 03/06/2023 | Brief amicus curiae of Jack Jordan in support of neither party filed. |
| 03/06/2023 | Brief amicus curiae of Alliance Defending Freedom in support of neither party filed. |
| 03/24/2023 | CIRCULATED |
| 03/24/2023 | Brief of respondent Colorado filed. (Distributed) |
| 03/30/2023 | Brief amici curiae of Legal Momentum, et al. filed. (Distributed) |
| 03/30/2023 | Brief amicus curiae of Criminal Justice Legal Foundation filed. (Distributed) |
| 03/31/2023 | Brief amici curiae of Lawyers' Committee for Civil Rights Under Law, et al. filed. (Distributed) |
| 03/31/2023 | Brief amici curiae of First Amendment Scholars, Evelyn Douek, et al. filed. (Distributed) |
| 03/31/2023 | Brief amicus curiae of the United States filed. (Distributed) |
| 03/31/2023 | Brief amicus curiae of Coles Whalen filed. (Distributed) |
| 03/31/2023 | Brief amici curiae of First Amendment Scholars, Dean Erwin Chemerinsky, et al. filed. (Distributed) |
| 03/31/2023 | Brief amici curiae of National Family Violence Law Center; et al. filed. (Distributed) |
| 03/31/2023 | Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. |
| 03/31/2023 | Brief amici curiae of Illinois, et al. filed. (Distributed) |
| 04/07/2023 | Reply of petitioner Billy Raymond Counterman filed. (Distributed) |
| 04/14/2023 | Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. |
| 04/19/2023 | Argued. For petitioner: John P. Elwood, Washington, D. C. For respondent: Philip J. Weiser, Attorney General, Denver, Colo.; and Eric J. Feigin, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) |
| 06/27/2023 | Judgment VACATED and case REMANDED. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Kavanaugh, and Jackson, JJ., joined. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined as to Parts I, II, III–A, and III–B. Thomas, J., filed a dissenting opinion. Barrett, J., filed a dissenting opinion, in which Thomas, J., joined. |
| 07/31/2023 | Judgment and mandate issued. |