Legal Alert

The Supreme Court Does Not Pose a “True Threat” to Defamation Law

by Chad R. Bowman, Thomas B. Sullivan, Michael P. Robotti, Lynn Oberlander, and Saumya K. Vaishampayan
June 28, 2023


An opinion about a category of unprotected speech called “true threats” sheds light on how a majority of the justices may view New York Times v. Sullivan, a key defamation case. It also resolves a split over the defendant’s requisite mental state in prosecutions based on threatening statements.

The Upshot

  • The Court held the First Amendment requires proof of subjective recklessness in state prosecutions of true threats.
  • In reaching its decision, the Court relied heavily on the actual malice standard in New York Times v. Sullivan that has come under attack in recent years.

The Bottom Line

There appear to be at least six votes to uphold New York Times v. Sullivan and its actual malice standard.

The Supreme Court on Tuesday delivered an unexpected endorsement of a key pillar of modern defamation law—the actual malice standard—in a case involving a separate category of unprotected speech, “true threats.”

In Counterman v. Colorado, petitioner Billy Counterman sought to overturn his conviction for stalking under a Colorado statute after sending hundreds of Facebook messages over several years to a local singer and musician that made her fear for her life. Counterman’s social-media onslaught included messages that ranged from “[w]as that you in the white Jeep?” to “You’re not being good for human relations. Die.” In rejecting a First Amendment defense, the courts below concluded that Colorado simply had to prove that a reasonable person would have considered the messages threatening to satisfy the First Amendment—an objective standard.

The Supreme Court took the case to resolve a split over the fault standard for “true threats,” and held that a state must prove that the defendant had some subjective understanding of his statement’s threatening nature. Specifically, the Court held that the First Amendment required proof of at least recklessness: “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” Such a standard, in the Court’s view, struck the right balance between giving sufficient breathing room to speech and acknowledging states’ interest in regulating true threats.

In reaching its conclusion, the Court relied heavily on its defamation precedents, including the actual malice standard enunciated in New York Times v. Sullivan, noting that defamation is the “best known and best theorized example” of historically unprotected speech that nonetheless receives “strategic protection.”

A decision grounding the rationale for a “true threats” First Amendment standard on Sullivan and its progeny comes amid its recent criticism from some—including both Justices Thomas and Gorsuch. The Court itself has not squarely considered actual malice in more than three decades, since its 1989 decision in Harte-Hanks Communications, Inc. v. Connaughton. Actual malice is the requirement that, to prevail on a defamation claim, a public official or public figure must show that a defendant published a false statement with knowledge of its falsity or with subjectively reckless disregard as to whether the statement was false. For proponents, the standard supports “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide‐open” by limiting liability for good-faith factual mistakes, at least in speech about public figures on matters of public concern.

In Counterman, Justice Kagan and four of her colleagues across the ideological spectrum—Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson—affirmed the importance of the actual malice standard articulated in Sullivan and its progeny. “That rule is based on fear of ‘self-censorship’—the worry that without such a subjective mental-state requirement, the uncertainties and expense of litigation will deter speakers from making even truthful statements.” Justice Kagan described the requirement of “culpable mental state” before liability may be imposed as “an important tool to prevent that outcome.”

Justice Sotomayor, who concurred in part and concurred in the Court’s judgment, urged even greater protections for speech under the true threats doctrine. Justice Gorsuch joined parts of Justice Sotomayor’s concurrence. Justice Sotomayor, writing for herself, urged lower courts to use Sullivan’s articulation of the actual malice standard as a way to define recklessness in true-threat prosecutions. “The equivalent to Sullivan for true threats would require a high degree of awareness that a statement was probably threatening or serious doubts as to the threatening nature of the statement.”

Justices Barrett and Thomas dissented. Justice Thomas, writing for himself, once again questioned the validity of Sullivan’s actual malice standard. “It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence.” His objection to “the majority’s surprising and misplaced reliance” on Sullivan seems to suggest that there would be at least six votes on the Court to reaffirm it, including Justice Sotomayor.

Justice Barrett, writing for both dissenters, argued that an objective standard made more sense than the Court’s recklessness standard. She did not directly question the validity of Sullivan, instead cabining the case as “rais[ing] the bar for borderline unprotected speech with high social value (because of its proximity to public discourse) and low potential for injury (because public figures can engage in counterspeech).” In arguing against Sullivan’s application to true threats, she noted that private figures only have to prove an objective standard (negligence) to succeed on a defamation claim and that the Court’s opinion “perversely” meant that “private individuals now have less protection from true threats than from defamation—even though they presumably value their lives more than their reputations.”

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