U.S. Supreme Court Considers the Standard for Criminal Threats

On Wednesday, April 19, the U.S. Supreme Court heard oral argument in Counterman v. Colorado, the case of a Colorado man who was sentenced to four-and-a-half years in prison for stalking based on Facebook messages he sent to a local musician. 

At issue in the case is a question with substantial impact on criminal law - what constitutes a “true threat”, which will not be protected by the First Amendment.  The state of Colorado advocated for its objective test, which looks only at whether a reasonable person would regard the statement as a threat of violence.  

Counsel for the defendant pointed out the dangers of an objective test, which ignores the intent behind the statements.  He noted that “[c]riminalizing misunderstanding is especially dangerous in an age when so much communication occurs on social media, which brings together strangers in an environment that removes much of the context that gives words meaning.”  In contrast, defendant’s counsel argued for a rule that requires the defendant have knowledge of “the thing that makes the conduct wrongful”, or, knowledge that their statement would cause a reasonable person to suffer emotional distress. 

The Colorado Attorney General argued that the subjective intent standard that the defendant suggests would “immunize stalkers who are untethered from reality”, a perspective focused on the impact on victims, irrespective of the intent of the defendant.  He also argued that a specific intent standard would make stalking far more difficult to prosecute.

Judging by their statements during oral argument, the justices seemed unlikely to uphold Colorado’s standard, concerned by the prosecution of individuals for statements, without considering their intent.  Justice Gorsuch and Justice Thomas commented on what they perceive to be the “increasingly sensitive”  nature of the American public.  Justice Alito and Justice Kavanaugh considered a middle-ground, with a “reckless conduct” standard - where a person may be punished for something they should have known.

The attorney for the defendant reminded the justices that over 20 states use a subjective intent test.  In Florida, a person commits the offense of stalking where they willfully, maliciously, and repeatedly followed, harassed another individual. See § 748.048, Fla. Stat. (2021).  The word “willfully” certainly requires that the defendant’s conduct is intentional, but there is a key difference between intending to commit an act, and intending the impact of that conduct.

There are parts of the Florida law that sound like Colorado’s objective test.  In Florida, to establish a case of stalking, the government must demonstrate that the defendant’s conduct would cause substantial emotional distress in a reasonable person.  See Bouters v. State, 659 So.2d 235 (Fla. 1995); see also Klenk v. Ransom

The term “maliciously” also suggests a requirement for some kind of evil intent, although Florida courts have interpreted this word, in the context of stalking cases, as a reference to “legal malice”, which does not relate to the defendant’s specific intent, but, again, refers to an objective standard. “Malicious behavior goes beyond intent to harm; it is behavior without just cause or excuse, that is substantially certain to cause injury”. See Khan v. Deutschman, 282 So.3d 965 (Fla.1st DCA 2019).

This issue is an important one in Florida criminal law, even outside of the context of the criminal statute against stalking.  Florida courts have recently been considering - and disagreeing about - the meaning of the term “threat” in the context of criminal prosecutions under Section 836.10, Florida Statutes, which makes it a second-degree felony “to send, post, or transmit” a threat to kill, do bodily harm, or conduct a mass shooting or act of terrorism” - but does not define the term “threat”.

For decades, Florida courts have widely relied on the test articulated by the Second District Court of Appeal in Smith v. State, which, just like the Colorado test, focuses on whether a statement would be sufficient to cause alarm in a reasonable person. See Smith v. State, 532 So.2d 50 (Fla. 2d DCA 1988).  However, in a recent decision, the Fourth District Court of Appeals held that a mens rea (intent) element must be read into the statute. See T.R.W. v. State, 48 Fla. L. Weekly D341c (Fla. 4th DCA, February 15, 2023).  The court in T.R.W. used the same term used before the U.S. Supreme Court in the Colorado case, a “true threat”, which it defined as “a communication made with the purpose of issuing a threat, or with knowledge that it will be viewed as a threat”.

The decision in Counterman may have important implications on the criminal prosecutions of many different crimes - and some civil injunction cases - in the state of Florida.  A decision is expected this summer.  You can follow the case HERE.