![]() ![]() A person acts recklessly, in the most common formulation, when he "consciously disregard a substantial risk that the conduct will cause harm to another." That standard involves insufficient concern with risk, rather than awareness of impending harm. A greater gap separates those two from recklessness. A person acts knowingly when "he is aware that result is practically certain to follow"-so here, when he knows to a practical certainty that others will take his words as threats. … Next down, though not often distinguished from purpose, is knowledge. A person acts purposefully when he "consciously desires" a result-so here, when he wants his words to be received as threats. Purpose is the most culpable level in the standard mental-state hierarchy, and the hardest to prove. ![]() The law of mens rea offers three basic choices. Thus, the Supreme Court decided to hear Counterman's case. ![]() "Courts are divided about (1) whether the First Amendment requires proof of a defendant's subjective mindset in true-threats cases, and (2) if so, what mens rea"-that is, level of intent or knowledge-"standard is sufficient," noted Kagan. The Colorado Supreme Court declined to review the case. The Colorado Court of Appeals then affirmed this decision, holding that "a speaker's subjective intent to threaten" is not necessary to convict the speaker for threatening communications. The case was put before a jury, which found Counterman guilty under the stalking statute. The trial court weighed whether Counterman's messages were true threats using a "reasonable person" standard: would some hypothetical, objective "reasonable person" find them threatening? It found that they would, meaning the messages were not protected speech. make any form of communication with another person" in "a manner that would cause a reasonable person to suffer serious emotional distress."Ĭounterman argued that his messages were not true threats and thus were protected by the First Amendment. She contacted local police, who charged him under a Colorado stalking statute that prohibits "repeatedly. Understandably, the messages frightened C.W., who worried that Counterman was following her and might hurt her. "Fuck off permanently," said one message. "Others suggested that Counterman might be surveilling C. "Some of his messages were utterly prosaic ('Good morning sweetheart' 'I am going to the store would you like anything?')-except that they were coming from a total stranger," notes Kagan. In this case, Billy Counterman sent C.W.-a singer and musician who lived in his community-hundreds of Facebook messages between 20. The State need not prove any more demanding form of subjective intent to threaten another. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. We hold that it does, but that a mental state of recklessness is sufficient. The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements. Today we consider a criminal conviction for communications falling within that historically unprotected category. "True threats of violence are outside the bounds of First Amendment protection and punishable as crimes," noted Justice Elena Kagan in the majority's opinion: The court's three liberal justices were joined by Justices Brett Kavanaugh, Neil Gorsuch, John Roberts, and Samuel Alito. In a 7-2 ruling issued yesterday, the Court vacated the conviction and remanded the case back to the lower court. Colorado-involves a defendant convicted of stalking after sending a bevy of Facebook messages to someone identified as C.W. SCOTUS ruling in Facebook threats case "neither the most speech-protective nor the most sensitive to the dangers of true threats." For statements to be considered true threats, unprotected by the First Amendment, the person making them must have some understanding the statements could be construed as threatening, the Supreme Court held yesterday. ![]()
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