Supreme Court Makes it Tougher to Convict Someone for Making Violent Threat

June 27, 2023

The Supreme Court ruled Tuesday to make it more difficult to convict a person of making a violent threat.

The implications of the ruling, based on First Amendment grounds, could make it tougher for prosecutors to convict people who threaten elected officials, including the President.

The Court ruled 7-2 in the case of The People of the State of Colorado v Billy Raymond Counterman with Justice Elena Kagan writing the majority opinion.

In rejecting Counterman’s stalking conviction, Kagan wrote that the State “must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

A jury had found Counterman guilty of stalking after he sent more than 1,000 Facebook messages to Coles Whalen, incuding telling the musician to “die.” 

Counterman appealed the case to the Supreme Court, asserting that he was diagnosed with a mental illness and that he had not intended for the statements to cause fear.

The state of Colorado, backed by the U.S. Justice Department, had argued that juries and judges should convict people of making threatening speech regardless of how they intended their statement to land.

In the majority opinion Kagan conceded that “the defendant had some subjective understanding of the threatening nature of his statements,” but the ruling aims to more clearly define what constitutes a “true threat,” which the Supreme Court established decades ago was unprotected speech under the Constitution.

Justices Sonia Sotomayor and Neil Gorsuch filed a concurring opinion to Kagan’s while Justices Clarence Thomas and Amy Coney Barrett dissented.

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