Counterman v. Colorado: True Threats, Speech Harms, and Missed Opportunities

Some Supreme Court cases amount, at their best, to missed opportunities. The Supreme Court’s recent case Counterman v. Colorado resolved, quite dubiously, one particular issue of mens rea. In the course of doing so, however, the Court ignored a variety of clearly presented issues of even greater significance. The Counterman case involved a state court criminal conviction for issuing a true threat of violence, or more simply, a true threat.

True threats, as defined and limited by the Court, comprise a narrow, traditionally constitutionally unprotected category of speech. Nevertheless, the majority in Counterman unnecessarily and unadvisedly extended a substantial measure of constitutional protection to issuing true threats. This result was obtained not through applying the overbreadth or vagueness doctrines, or by working through the logic and purposes of free speech, but by dubiously selecting and imposing a particular mens rea requirement in criminal true threat cases. The constitutionally required mens rea was held, more specifically, to be that of a subjective level wherein the defendant must consciously understand the statement’s threatening nature and act with reckless disregard of the substantial risk of the speech being construed as a violent threat.6 More simply, the Court required what this Articles refers to as a “conscious reckless disregard” mens rea standard.