Counterman v. Colorado, USSC No. 22-138; cert. granted 1/13/23; Scotusblog page (containing links to briefs and commentary)

Question presented:

Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.

The Court decided Virginia v. Black, 538 U.S. 343 (2003), 20 years ago, and said in that opinion that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.” In the ensuing decades, courts across the land have split on whether a communication can fall within this First Amendment exception where a reasonable person would regard the communication as carrying a threat–or whether, instead, the person making the communication must subjectively mean to threaten. As we’ve noted, Wisconsin courts have adhered to an objective standard since State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762; this case could change or confirm that position.

This is the second time in the past few years the Court has taken up this question. In the first case, Elonis v. United States, 135 S. Ct. 2001 (2015), the Court ended up ducking the constitutional question: it instead held the federal statute Elonis was convicted under contained an implicit scienter element. This case–involving a stalking conviction from Colorado–seems likely to answer the question Elonis left open.