Counterman v. Colorado
To stop the punishment and chilling of hyperbolic expression, including political speech, FIRE submitted an amicus curiae brief to the Supreme Court of the United States in the case of Counterman v. Colorado. Billy Raymond Counterman, who is diagnosed with a mental illness, believed he was conversing with a musician via Facebook messages, though the musician never responded. Ultimately, the musician canceled some shows and obtained a restraining order, and law enforcement arrested Counterman based on his messages though he did not contact the musician while the restraining order was in effect. Counterman disclaimed any actual intent to make a threat, but the jury was instructed that his actual mental state was irrelevant and concluded that Counterman’s messages were threatening.
FIRE’s brief argues that “true threats,” which are outside the First Amendment’s protection, should only be found where there is evidence of the speaker’s specific intent to threaten. The alternative—a general-intent standard—holds speakers accountable for their statements when they had no intention of causing harm, if a so-called “reasonable person” would deem the statements threatening.
In FIRE’s experience, the risk to protected speech—including examples of jokes and political hyperbole that not even a reasonable person would find threatening, at the core of the First Amendment’s protections—far outweighs the risk that speakers who actually intend to threaten others will go unpunished. A specific-intent standard is most consistent with Supreme Court precedents and best protects speech while also protecting individuals from the harms of intentional threats. To safeguard our national commitment to uninhibited debate, FIRE is asking the Court to rule that the finding of a “true threat” requires evidence of a speaker’s specific intent to cause fear of bodily harm in another.