Counterman v. Colorado (22-138)
argument 22-138Counterman v. Colorado
Supreme Court of the United States
1h 46m
8 speakers
8 chapters
transcribed 8 days ago
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Transcript
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What is the core argument presented by counsel at the start of Counterman v. Colorado?
You'll hear argument this morning in Case 22-138, Counterman v. Colorado.
Mr. Elwood. Mr. Chief Justice, and may it please the Court, this Court has long held that because of the importance of free speech in our country, categorical exceptions to the First Amendment's prohibition on content regulations must be well-defined and narrowly limited. And speech cannot be exempted without proof of a long-settled tradition of subjecting that speech to regulation. The state has not come close to meeting its burden of showing a long-settled tradition of punishing true threats without proof the speaker knew that a statement would cause fear. In the face of early cases and treatises showing the central importance intent played in speech prosecutions and threat prosecutions specifically, Colorado cannot cite even a single decision holding that subjective intent is irrelevant.
The best it can do is cite cases that were silent about the required intent in the face of unambiguous threats. The state tries to conjure a tradition of punishing negligent threats by analogy to other categorical exceptions. But generally, they require at least recklessness. The closest analog, incitement, requires specific intent. At bottom, any claim of a settled tradition of criminalizing negligent threats is impossible to square with Virginia v. Black, where this Court reversed convictions for cross-burning that would have easily satisfied a negligence standard, and a series of opinions emphasizing the central importance intent plays in making threats constitutionally prescribable. While the state predicts harm, it has shown no difference in criminal enforcement or the availability of civil protective orders in the many jurisdictions that already require subjective intent.
There, prosecutors prove mens rea the same way prosecutors always have under countless criminal statutes, through objective evidence of the defendant's words and actions. Criminalizing 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. And it chills expression by imposing prison time on speakers who do not tailor their views to suit their audience. This court should reverse. I welcome the court's questions.
Mr. Elwood, I don't quite understand why you would cite black when black did have an intent requirement. The question was whether or not the presumption of cross-burning in a field overcame that intent requirement or demonstrated that.
If intent wasn't constitutionally required, there isn't any reason why it couldn't be presumed away. Maybe that would raise a due process issue, but not a First Amendment issue. And the court focused the discussion on intent and the constitutionality of the First Amendment issue. And the plurality specifically said that the state had presumed away the thing that makes threats constitutionally prescribable. And in addition, Justice Scalia said that the constitutional defect was in preventing the consideration of the intent of the people who burned the crosses. So I think from that you can at least say it doesn't establish, it's not consistent with a clear tradition of criminalizing negligent threats.
One other thing. There are other categories. And just take, for example, obscenity. you don't have a subjective intent requirement there. So why should these true threats receive more protection than obscenity?
I think especially under Alonis' gloss of Hamling. Hamling said that you had to know not only the contents but the character of obscene materials, which the court described in Hamling as the conscious purveyance of filth. And in Alonis, the court said that that was equivalent of knowing that your statements would cause fear. So I think that it is entirely consistent with the idea that there is a subjective intent requirement, at least at the knowledge level, which is all that we are asking for here.
What about fighting words?
Fighting words, people always look to Chaplinsky, but I think that's over-reading about a page and a half of analysis in a case that didn't clearly present it.
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Chapters
8 chapters
1
What is the core argument presented by counsel at the start of Counterman v. Colorado?
0:00–15:12
2
How does the discussion define the role of speaker intent versus objective standards in true‑threat cases?
15:12–27:38
3
Which historical Supreme Court cases are cited to illustrate the tradition of intent requirements?
27:38–41:24
4
How do the parties differentiate between criminal prosecution and civil protective orders under the statute?
41:24–53:45
5
What is the “reasonable person” test and why is it contested in this case?
53:45–1:04:46
6
How are stalking and online threats used as examples to illustrate the practical impact of mens‑rea standards?
1:04:46–1:17:34
7
What policy concerns do the Justices raise about chilling effects and legislative intent?
1:17:34–1:30:28
8
What conclusions and final questions does the Court pose before deciding the case?
1:30:28–1:46:23