From 2014 to 2016, petitioner Billy Counterman sent
hundreds of Facebook messages to C. W., a local singer and
musician. The two had never met, and C. W. never re-
sponded. In fact, she repeatedly blocked Counterman. But
each time, he created a new Facebook account and resumed
his contacts. Some of his messages were utterly prosaic
2 COUNTERMAN v. COLORADO
Opinion of the Court
(“Good morning sweetheart”; “I am going to the store would
you like anything?”)—except that they were coming from a
total stranger. 3 App. 465. Others suggested that Counter-
man might be surveilling C. W. He asked “[w]as that you
in the white Jeep?”; referenced “[a] fine display with your
partner”; and noted “a couple [of] physical sightings.” 497
P. 3d 1039, 1044 (Colo. App. 2021). And most critically, a
number expressed anger at C. W. and envisaged harm be-
falling her: “Fuck off permanently.” Ibid. “Staying in cyber
life is going to kill you.” Ibid. “You’re not being good for
human relations. Die.” Ibid.
The messages put C. W. in fear and upended her daily
existence. She believed that Counterman was
“threat[ening her] life”; “was very fearful that he was fol-
lowing” her; and was “afraid [she] would get hurt.” 2 App.
177, 181, 193. As a result, she had “a lot of trouble sleeping”
and suffered from severe anxiety. Id., at 200; see id., at
194–198. She stopped walking alone, declined social en-
gagements, and canceled some of her performances, though
doing so caused her financial strain. See id., at 182–183,
199, 201–206, 238–239. Eventually, C. W. decided that she
had to contact the authorities. Id., at 184.
Colorado charged Counterman under a statute making it
unlawful to “[r]epeatedly . . . make[ ] any form of communi-
cation with another person” in “a manner that would cause
a reasonable person to suffer serious emotional distress and
does cause that person . . . to suffer serious emotional dis-
tress.” Colo. Rev. Stat. §18–3–602(1)(c) (2022). The only
evidence the State proposed to introduce at trial were his
Facebook messages.1
1 The statute Counterman was charged with violating is titled a “stalk-
ing” statute and also prohibits “[r]epeatedly follow[ing], approach[ing],
contact[ing], [or] plac[ing] under surveillance” another person. §18–3–
602(1)(c). But the State had no evidence, beyond what Counterman
claimed, that he actually had followed or surveilled C. W. For example,
C. W. had never noticed anything of that kind. So the prosecution based
its case solely on Counterman’s “[r]epeated[ ] . . . communication” with
C. W. Ibid.
Counterman moved to dismiss the charge on First
Amendment grounds, arguing that his messages were not
“true threats” and therefore could not form the basis of a
criminal prosecution. In line with Colorado law, the trial
court assessed the true-threat issue using an “objective ‘rea-
sonable person’ standard.” People v. Cross, 127 P. 3d 71, 76
(Colo. 2006). Under that standard, the State had to show
that a reasonable person would have viewed the Facebook
messages as threatening. By contrast, the State had no
need to prove that Counterman had any kind of “subjective
intent to threaten” C. W. In re R. D., 464 P. 3d 717, 731, n.
21 (Colo. 2020). The court decided, after “consider[ing] the
totality of the circumstances,” that Counterman’s state-
ments “r[o]se to the level of a true threat.” 497 P. 3d, at
1045. Because that was so, the court ruled, the First
Amendment posed no bar to prosecution. The court accord-
ingly sent the case to the jury, which found Counterman
guilty as charged.
The Colorado Court of Appeals affirmed. Counterman
had urged the court to hold that the First Amendment re-
quired the State to show that he was aware of the threat-
ening nature of his statements. Relying on its precedent,
the court turned the request down: It “decline[d] today to
say that a speaker’s subjective intent to threaten is neces-
sary” under the First Amendment to procure a conviction
for threatening communications. Id., at 1046 (quoting
R. D., 464 P. 3d, at 731, n. 21). Using the established objec-
tive standard, the court then approved the trial court’s rul-
ing that Counterman’s messages were “true threats” and so
were not protected by the First Amendment. 497 P. 3d, at
1050. The Colorado Supreme Court denied review.