By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
I love writing the As the Judges Saw it column, but occasionally it can be difficult to choose a case to write about. Sometimes there are so many recent cases on important topics that it’s difficult to pick just one, other times many recent cases are in very niche and esoteric areas, and still other cases are simply error corrections.
When I have trouble choosing, I often ring up my friend (and co-presenter at TDCAA’s Annual Conference) Emily Johnson-Liu of the State Prosecuting Attorney’s Office, and that’s what I did this month. “How about Counterman v. Colorado?” she suggested. “People need help with it.” She was right, of course: As soon as the U.S. Supreme Court case came down—reversing the stalking conviction of a Colorado defendant on First Amendment grounds—we began seeing it argued in our own cases.
So, what is Counterman all about? The short version is this: to avoid a chilling effect on protected speech, a pure true-threats prosecution requires that the defendant be at least reckless that he is threatening his victim. Here’s the long version.
Billy Ray Counterman somehow became obsessed with C.W., a Colorado musician, and sent her hundreds of disturbing Facebook messages between 2014 and 2016. Each of her attempts to block him were futile, as he would simply create a new account each time. Some of the messages would have seemed harmless except that they were coming from a total stranger, such as, “Good morning sweetheart” and “I am going to the store would you like anything?” Others suggested she was being followed or watched, such as “Five years on Facebook. Only a couple physical sightings”; “Was that you in the white Jeep?”; “A fine display with your partner”; and “Your response is nothing attractive. Tell your friend to get lost.” Still others were hostile and threatening: “F*** off permanently”; “Staying in cyber life is going to kill you. Come out for coffee. You have my number”; “I’ve had tapped phone lines before. What do you fear?”; “[y]our arrogance offends anyone in my position”; “[h]ow can I take your interest in me seriously if you keep going back to my rejected existence”; and “[y]ou’re not being good for human relations. Die. Don’t need you.”
Mr. Counterman was charged with the offense of “stalking—serious emotional distress” under Colorado law (another count of stalking—credible threat was dismissed prior to trial). The charge required the prosecution to prove that “directly, or indirectly through another person,” Counterman knowingly:
[r]epeatedly follow[ed], approach[ed], contact[ed], place[d] under surveillance, or ma[de] any form of communication with [C.W.], … in a manner that would cause a reasonable person to suffer serious emotional distress and d[id] cause [C.W.] … to suffer serious emotional distress.
At trial, Counterman moved to dismiss, arguing that the Colorado stalking law was unconstitutional as applied to him because his statements were protected speech, not unprotected “true threats.” U.S. Supreme Court jurisprudence has long permitted content-based restrictions on speech when the expression is a “true threat,” meaning a statement “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” The term of art originally comes from a 1969 case, Watts v. United States, in which the Supreme Court held that a crude threat made at an antiwar rally against President Lyndon Johnson in an unserious, hyperbolic, and conditional manner did not constitute a “true threat.”
The Colorado stalking law in question had an “objective reasonable person” standard, meaning that the State had to show that a reasonable person would have viewed the Facebook messages as threatening; there was no need to prove that the defendant had any subjective intent. The trial court found that Counterman’s statements were “true threats” and were not protected speech. Counterman appealed to the Colorado Court of Appeals Second Division, arguing that the First Amendment required proof that he was aware that his communications were threatening. The court of appeals declined to find that a subjective intent to threaten was necessary under the First Amendment, and the Colorado Supreme Court denied review. Counterman petitioned the Supreme Court of the United States for a writ of certiorari, and the Court granted review.
As the SCOTUS judges saw it
The U.S. Supreme Court vacated and remanded 7–2. Justice Kagan, writing for the Court, observed that “true threats” are historically unprotected speech, as opposed to statements made in jest or mere hyperbole, as in the Watts case. The Court had recently held in Elonis v. United States (also involving Facebook threats) that whether a statement is a threat depends not on the mental state of the person making it, but instead on what the statement conveys. Still, Kagan reasoned here that the First Amendment may require a showing of a subjective mental state to avoid what we commonly call a “chilling effect,” when a prohibition on unprotected speech has the effect of deterring people from engaging in protected speech out of fear of running afoul of the law.
To avoid forcing people to self-censor protected speech out of fear of prosecution, the Court has in the past created a prophylactic “buffer zone” of sorts by requiring a showing of a culpable mental state when the First Amendment is implicated criminally or civilly. For example, the Court held in New York Times Co. v. Sullivan that although defamation is not constitutionally protected, a public figure cannot sue for defamation unless the speaker acted with “knowledge that it was false or with reckless disregard of whether it was false or not”; the same standard was held to apply to unprotected criminal libel in Garrison v. Louisiana.  It was similarly held in Brandenburg v. Ohio that unprotected incitement may not be held to criminal or civil liability without a showing that the speaker intended to produce imminent disorder, to prevent a chilling effect on protected “mere advocacy” of actions that may be illegal. One fascinating example of this last one is gangster rap. In Davidson v. Time Warner, musician Tupac Shakur and his label Time Warner were sued for gross negligence in inciting “imminent lawless action” after a man blamed his shooting of a state trooper on listening to Shakur’s album 2Pacalypse Now. A federal court for the Southern District of Texas found that although the album was “both disgusting and offensive” and “an indication of society’s aesthetic and moral decay,” it was not intended to incite imminent lawless action and was therefore protected by the First Amendment.
Justice Kagan reasoned that the same logic the Court had used to require a subjective intent element in defamation, obscenity, and incitement cases to avoid a chilling effect on protected speech applies to the “true threats” doctrine in Counterman’s case, while recognizing that doing so made the prosecution of dangerous communications harder. She found that the standard required should be recklessness, saying that standard offers enough “breathing space” for protected speech without sacrificing too many of the benefits of enforcing laws against true threats. Because the State of Colorado was required to show only that an objectively reasonable person would understand Counterman’s statements as threats, and the State did not have to show any subjective awareness on his part, the law could not be defended solely on the basis of unprotected true threats.
Justice Sotomayor concurred in part and concurred in the judgment, joined by Justice Gorsuch. Justice Sotomayor agreed that a mens rea was required in true-threats cases and agreed that, particularly in prosecution for stalking involving threatening statements, a recklessness standard was “amply sufficient.” She did not agree that recklessness should be the required standard in pure true-threats cases, but she argued that “this case does not require resort to the true-threats exemption to the First Amendment” because Counterman was prosecuted for stalking for a combination of threatening statements and repeated, unwanted, direct contact with C.W. That offense involved much more than pure speech; in fact, the content of the communications is often irrelevant. She intimated that there were numerous reasons Counterman’s conduct could be criminalized consistent with the First Amendment. As she explained, “True threats doctrine came up below only because of the lower courts’ doubtful assumption that [the] petitioner could be prosecuted only if his actions fell under the true-threats exception. I do not think that is accurate, given the lessened First Amendment concerns at issue. In such cases, recklessness is amply sufficient.”
Justice Barrett dissented, joined by Justice Thomas. Justice Barrett disagreed with the majority’s application of a recklessness mens rea to threatening speech, arguing that it unjustifiably grants “true threats” preferential treatment over other categories of unprotected speech, such as fighting words; “false, deceptive, or misleading” commercial speech; or obscenity (further arguing here that the majority misstates the obscenity standard). Justice Barrett referred to the majority’s reliance on the actual-malice standard of New York Times v. Sullivan as “cherry picked,” and although she agreed that the specific intent requirement in incitement cases “helps draw the line between incitement and ‘political rhetoric lying at the core of the First Amendment,’” she noted that the majority had not contended that targeted threats and political commentary share the same close relationship. She summed up with an affirmation of originalism, noting that Counterman had fallen short of it: “At the end of the day, then, the best historical case for Counterman does not add up to much. He is plainly not asking the Court to enforce a historically sanctioned rule, but rather to fashion a new one.”
Although Justice Thomas fully joined Justice Barrett’s dissent, he also wrote separately to address the majority’s reliance on perhaps his least favorite decision: New York Times v. Sullivan. He lamented that “it was 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.” Justice Thomas has long argued that the case should be jettisoned; in 2019 he wrote a lengthy concurrence to a nine-word denial of certiorari in McKee v. Cosby (yes, that Cosby), calling the decision and cases following it “policy-driven decisions masquerading as constitutional law” and describing the constitutional actual-malice requirement as “meddling” in State law affairs “with little historical evidence suggesting that [it] flows from the original understanding of the First or Fourteenth Amendment.” Safe to say he is not a fan.
The takeaway: What’s this mean to the rest of us?
So, what does the Counterman decision mean to the trial and appellate prosecutors down here on the front lines in Texas? Fortunately, many of our statutes involving criminal threats have the subjective mens rea that the Colorado statute lacks, in many cases higher than the defendant’s recklessness about whether his words threaten violence. Penal Code §36.06, Retaliation, requires a subjective mens rea showing that the person intentionally or knowingly harmed or threatened to harm another by an unlawful act in retaliation for the service or status of another. Penal Code §42.07(a)(2), Assault by Threat, requires that the State prove that the accused intentionally or knowingly threatened another with imminent bodily injury; post-Counterman, bear in mind that this has to take into account the actor’s conscious awareness of the threatening nature of the statement, not merely awareness of the words he is saying. One common way Penal Code §22.07, Terroristic Threat, is charged is by alleging the accused threatened to commit an offense involving violence against a person with the intent to place any person in fear of imminent serious bodily injury. All of these require a greater showing than Counterman requires.
But not every offense—and certainly not every manner and means of every offense—will comply with Counterman’s requirement for constitutionally prosecutable true threats. That’s OK. Just remember that there are often many more bases for why the conduct can be constitutionally criminalized, and we should argue those, unlike the State of Colorado did by putting all its eggs in the “true threats” basket.
The few Texas cases handed down since Counterman have implicitly recognized that stalking and harassment statutes do not have to be limited to true threats made recklessly to comport with the First Amendment. In both Ex parte Ordonez and State v. Chen, the Fourteenth Court of Appeals concluded that Counterman did not invalidate the Texas electronic harassment statute because the “repeated sending of electronic communications” is noncommunicative conduct that doesn’t implicate the First Amendment at all. Ordonez and Chen relied on two Court of Criminal Appeals cases decided before Counterman, Ex parte Sanders and Ex parte Barton, which drew the same distinction between protected speech and unprotected non-speech conduct.
So, even though Penal Code §42.07, Harassment, requires a mental state of “intent to harass, annoy, alarm, abuse, torment, or embarrass another”—and it does not necessarily encompass the fear of violence that a true threat would likely require—that is not the end of the story. Sanders, Barton, and Justice Sotomayor’s concurrence in Counterman provide numerous other reasons that the statute is constitutional, chief among them that harassment is typically about conduct, not speech.
Similarly, Penal Code §42.072, Stalking, can be charged as engaging in conduct that the actor “reasonably should know that the victim will regard as threatening bodily injury.” This is a criminal negligence standard and, standing alone, would not pass muster under Counterman. Prosecutors can avoid the constitutional argument by choosing the “knowing the victim will regard as threatening bodily injury” manner and means and thus encompass only a defendant’s prosecutable true threats. But realize that there are many more reasons that the conduct of stalking can be criminalized entirely consistent with the First Amendment, and that requiring the State to prove a defendant’s reckless mental state will seldom be a necessary step.
 600 U.S. 66 (2023).
 Emily’s input was instrumental in writing this article but she is very modest, so I am sticking her thanks in the endnotes.
 Virginia v. Black, 538 U.S. 343, 359 (2003) (holding Virginia’s ban on cross burning does not violate the First Amendment, so long as the prosecution proves the intent to intimidate with additional facts).
 394 U.S. 705 (1969).
 People v. Counterman, 2021 COA 97, 497 P.3d 1039 (Colo. App. 2021).
 575 U.S. 723 (2015) (involving the federal anti-threat statute, 18 U.S.C. § 875(c)).
 376 U. S. 254, 280 (1964).
 379 U. S. 64, 74, 85 (1964).
 395 U.S. 444 (1969).
 No. V-94-006, 1997 U.S. Dist. LEXIS 21559 (S.D. Tex. 1997); see also Waller v. Osbourne, 763 F. Supp. 1144 (M.D. Ga. 1991) (analyzing Ozzy Osbourne song “Suicide Solution” under Brandenburg), aff’d, 958 F.2d 1084 (11th Cir. 1992) (unpublished opinion), cert. denied, 506 U.S. 916 5 (1992); Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 536 N.E.2d 1067, 1071 (Mass. 1989) (the movie The Warriors did not incite gang violence under Brandenburg).
 Counterman, 143 S. Ct. at 2119 (quoting Elonis, 575 U. S., at 748).
 139 S. Ct. 675 (2019) (J. Thomas, dissenting).
 The amicus curiae brief of Kent S. Scheidegger and Kymberlee C. Stapleton of the Criminal Justice Legal Foundation argued this point to the Court in Counterman: “[p]roceeding directly to the true threat question without stopping to consider if a content-based regulation is involved is a plain error…a decision in this case that proceeds directly to the true threat issue could be taken to imply that stalking statutes are limited to true threats. The statute in this case and similar stalking statutes throughout the nation would be imperiled, and the value of their protection to stalking victims would be largely eliminated.” Brief for the Criminal Justice Legal Fdn. as Amicus Curiae, pp. 24-25, 600 U.S. 66 (2023); see also https://fedsoc.org/events/courthouse-steps-decision-counterman-v-colorado (retrieved Oct. 20, 2023) (interview with Mr. Scheidegger criticizing majority opinion for failing to clarify this point).
 No. 14-19-01005-CR, 2023 Tex. App. LEXIS 5389 (Tex. App.—Houston [14th Dist.] July 25, 2023, no pet. h.).
 Nos. 14-19-00372-CR, 14-19-00373-CR, 2023 Tex. App. LEXIS 6654 (Tex. App.—Houston [14th Dist.] Aug. 29, 2023, no pet. h.).
 663 S.W.3d 197 (Tex. Crim. App. 2022).
 662 S.W.3d 876 (Tex. Crim. App. 2022).