Supreme Court Clarifies Test on Proving ‘True Threats’ Under the First Amendment

The stricter test would require that those “who are making threatening communications” must at least have “an awareness of a substantial risk that their communications could be viewed as threatening,” said Jon Kurland, attorney advisor with AEquitas. AEquitas is a non-profit organization which signed onto an amicus brief on behalf of Colorado, and is composed of former prosecutors focused on the “quality of justice in gender-based violence and human trafficking cases.”

Kurland said he thinks the “holding could’ve been a lot worse,” and that the standard the court required regarding an offender’s mental state is one that many prosecutors already address.

The Counterman decision, Kurland added, doesn’t impact cases of typical stalking or similar criminal acts. “Really the only sort of intersection that the Counterman court found with stalking and the First Amendment is that where the stalking conduct is composed of communications,” he said.