On June 27, 2023, the Supreme Court of the United States decided Counterman v. Colorado, holding, among other things, that the First Amendment required the criminal conviction of a man found guilty of stalking a woman through Facebook to be vacated.

In Counterman, the defendant “sent hundreds of Facebook messages” to a woman he never met and he formed new accounts each time the woman blocked him. The woman believed the messages threatened her and placed her in a regular state of fear, so she reported him to the authorities. Colorado charged the defendant under a stalking statute and used only his Facebook posts as evidence at his trial to obtain a conviction. The defendant appealed, claiming that under the First Amendment his Facebook messages to the woman were not “true threats” and could not be used as evidence against him. The Colorado Court of Appeals held that the messages were “true threats” and, therefore were not protected by the First Amendment.

The Supreme Court reversed, holding, among other things, that although “True threats of violence…lie outside the bounds of First Amendment protection,” the State must prove in a true-threat case “that the defendant had some understanding of his statements’ threatening character.” The Court rejected the State’s “objective standard” argument that it was enough for the State to show that a reasonable person would understand the defendant’s statements to be threats. Instead, the Supreme Court held that the State had to apply a subjective standard and show the defendant himself was aware that his statements could be understood to be threats.

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