Assessing Online True Threats and Their Impacts: The New Standard of Counterman v. Colorado
By Jacob Kovacs-Goodman & Alice Schoenauer Sebag
Jacob Kovacs-Goodman, J.D., is a Redstone Public Service Venture Fellow at Harvard Law School. He is a graduate of Harvard Law School.
Alice Schoenauer Sebag, Ph.D., is a member of the technical staff in ML Safety at Cohere, Inc. She was previously a machine learning engineer in Trust & Safety at Twitter(now X), and chief data scientist at the General Inspectorate of Finance (French Ministry for the Economy and Finance). She completed her Ph.D. at Mines Paris PSL (France) after graduating from the École Polytechnique and University Paris I – Pantheon – Sorbonne (France). This work was conducted prior to joining Cohere.
The authors would like to thank Geoffrey Négiar for his precious support and help proofreading and improving the Note, as well as the editors for their thoughtful comments and feedback.
In Counterman v. Colorado, the United States Supreme Court held that the minimum mental state (mens rea) required to trigger the “true threats” exception to First Amendment speech protections is recklessness. Though the majority opinion never mentioned the Internet, the decision will shape the way individuals interact online.
This Note examines the legal context and potential impact of the Counterman decision, with emphasis on the specific qualities of online speech. In Part II, we review true threats jurisprudence at both the federal and state levels. Part III details how, during oral argument and in the Counterman decision itself, Justices probed a recklessness standard, breaking with the two mainstream standards courts have used, and conflating two distinct crimes in the process. Part IV analyzes threatening and hateful speech in the online environment. Part V considers how a recklessness standard, which allows for conviction when a speaker consciously disregarded a substantial risk that the content of their speech was threatening, compares favorably against the two previous prevailing tests. The Note concludes by sketching a multistakeholder path towards a healthier online “marketplace of ideas.”