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June 2023

Counterman v. Colorado: Good News for Sullivan Fans

By Jeff Hermes
PUBLISHED IN: MediaLawLetter June 2023

In Counterman v. Colorado, (June 27, 2023), the Supreme Court in a 6-3 opinion by Justice Kagan held that, in a prosecution for making “true threats,” the First Amendment requires the prosecution to establish a subjective awareness of the threatening nature of the statements at issue sufficient to meet a recklessness standard, i.e., that the defendant “consciously disregarded a substantial and unjustifiable risk that [their] conduct will cause harm to another.” In doing so, the Court finally resolved the constitutional question regarding the mental state necessary in a “true threats” case, a question that had been hanging open since Watts v. United States in 1969 and on which the Court most recently punted in Elonis v. United States in 2015.

The most interesting thing about the opinion to me is how the Court reaches that result. The Court says explicitly that whether a statement is a threat does not depend on the intent of the speaker but upon the message received by the listener. However, scienter amounting to subjective recklessness is required in order to avoid chilling effects on other speech.

And where does the Court find that subjective recklessness standard?

That kind of “strategic protection” features in our precedent concerning the most prominent categories of historically unprotected speech. Gertz, 418 U. S., at 342. Defamation is the best known and best theorized example. False and defamatory statements of fact, we have held, have “no constitutional value.” Id., at 340; see Alvarez, 567 U. S., at 718–719 (plurality opinion). Yet a public figure cannot recover for the injury such a statement causes unless the speaker acted with “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964); see Garrison v. Louisiana, 379 U. S. 64, 74 (1964) (using the same standard for criminal libel). That rule is based on fear of “self-censorship”—the worry that without such a subjective mental-state requirement, the uncertainties and expense of litigation will deter speakers from making even truthful statements. Sullivan, 376 U. S., at 279. The First Amendment, we have concluded, “requires that we protect some falsehood in order to protect speech that matters.” Gertz, 418 U. S., at 341.

Counterman, slip op. at 7-8. The majority went on to explain,

Using a recklessness standard … fits with the analysis in our defamation decisions. As noted earlier, the Court there adopted a recklessness rule, applicable in both civil and criminal contexts, as a way of accommodating competing interests. … In the more than half-century in which that standard has governed, few have suggested that it needs to be higher—in other words, that still more First Amendment “breathing space” is required. Gertz, 418 U. S., at 342. And we see no reason to offer greater insulation to threats than to defamation. See Elonis, 575 U. S., at 748 (opinion of ALITO , J.). The societal interests in countering the former are at least as high. And the protected speech near the borderline of true threats (even though sometimes political, as in Rogers) is, if anything, further from the First Amendment’s central concerns than the chilled speech in Sullivan-type cases (i.e., truthful reputation-damaging statements about public officials and figures).

Id at 12.

That certainly sounds to me as if the Court is endorsing Sullivan as a model for extending First Amendment protections to another category of speech. And that’s how Justice Thomas took it, too, judging by his none-too-happy dissent (in which no other justice joined, and in which he liberally quoted and cited himself):

I write separately to address the majority’s surprising and misplaced reliance on New York Times Co. v. Sullivan, 376 U. S. 254 (1964). In New York Times, this Court held that the First Amendment bars public figures from recovering damages for defamation unless they can show that the statement at issue was made with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 280. Like the majority’s decision today, “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” McKee v. Cosby, 586 U. S. ___, ___ (2019) (THOMAS, J., concurring in denial of certiorari) (slip op., at 2). Instead of simply applying the First Amendment as it was understood at the time of the Founding, “the Court fashioned its own ‘ “federal rule[s]” ’ by balancing the ‘competing values at stake in defamation suits.’ ” Ibid. (quoting Gertz v. Robert Welch, Inc., 418 U. S. 323, 334, 348 (1974)); see also Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 501–502 (1984) (acknowledging that “the rule enunciated in the New York Times case” is “largely a judge-made rule of law,” the “content” of which is “given meaning through the evolutionary process of common-law adjudication”). “The constitutional libel rules adopted by this Court in New York Times and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law.” McKee, 586 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 6). Thus, as I have previously noted, “[w]e should reconsider our jurisprudence in this area.” Id., at ___ (slip op., at 14); see also Berisha v. Lawson, 594 U. S. ___ (2021) (THOMAS, J., dissenting from denial of certiorari).

I am far from alone. Many Members of this Court have questioned the soundness of New York Times and its numerous extensions. See, e.g., Berisha, 594 U. S., at ___–___ (GORSUCH , J., dissenting from denial of certiorari) (slip op., at 5–8); Coughlin v. Westinghouse Broadcasting & Cable, Inc., 476 U. S. 1187 (1986) (Burger, C. J., joined by Rehnquist, J., dissenting from denial of certiorari); Gertz, 418 U. S., at 370 (White, J., dissenting); Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 62 (1971) (Harlan, J., dissenting); id., at 78 (Marshall, J., dissenting); Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring); see also E. Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc. Inquiry 197, 207 (1993); J. Lewis & B. Ottley, New York Times v. Sullivan at 50, 64 DePaul L. Rev. 1, 35–36 (2014) (collecting statements from Justice Scalia); cf. Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251–256 (CADC 2021) (Silberman, J., dissenting in part) (questioning the doctrine). It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence.

Counterman (Thomas, J., dissenting), slip op. at 1-2. So, if you were concerned that Thomas was rallying a coalition within the Court to overturn Sullivan, I’d take this as a pretty good sign that he is not making much progress.

All that being said, I’m actually not that happy with the Court’s conclusion in terms of how the new scienter standard will work in prosecutions for true threats, because threats and defamation pose fundamentally different problems. Unlike defamation, where the fault standard relates to care taken in gathering information, in threat cases the issue is the care that the speaker takes in composing their words—i.e., at the encoding phase of the communication—to avoid threatening implications.

Standards such as recklessness would therefore function differently. Because the substance of a statement is within the control of the speaker, analyses of the meaning of the statement and the speaker’s level of care in choosing language collapse together. If a statement is deemed to convey an obvious threat, a jury will likely find at least recklessness if not intent on the part of the speaker. That is to say, the jury’s own interpretation of the statement will override the scienter analysis.

Judges and juries are inescapably placed in the position of evaluating an allegedly threatening statement as recipients; their role is not as encoders but decoders of the communication at issue. Instead of taking pains to be sure that messages are not misunderstood by the intended recipient, speakers will take pains to be sure their messages are not misunderstood by one or more strangers whose decisions have the force of law. The likely result is that a recklessness standard will provide little more protection against a chilling effect than an objective interpretation standard.

But hey, yay Sullivan!

Jeff Hermes is a deputy director of the Media Law Resource Center.