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June 27, 2023

Chris Jackson Shares Insights on SCOTUS Ruling on Colorado's Stalking Law

updated 6/29/2023

Holland & Hart appellate partner Chris Jackson shares insights with several media outlets discussing the US Supreme Court’s ruling in Counterman v. Colorado. In a 7-2 decision, the Supreme Court held the First Amendment imposes limits on laws that make it a crime to issue threats on the internet. While the state need not prove a specific intent to threaten, the state must demonstrate the speaker acted recklessly, a higher bar than the objective reasonable person standard upheld by Colorado courts. The Supreme Court vacated Counterman’s conviction and remanded the case for prosecutors to determine whether to try the defendant again under the more demanding standard showing he consciously disregarded a substantial risk that his communications would be viewed as threatening violence.

Jackson shared with The National Law Journal, that the decision “won’t make life easier for prosecutors looking to aid victims of such attacks,” adding, “The court’s establishment of a subjective mental-state requirement opens the door for prosecution, but it’s a narrow opening.”

He also discussed the ruling with The Denver Post, saying the “The right way to think about it is, there is still a criminal law that prevents this kind of conduct, but now going forward, any prosecution will have to prove recklessness." Adding, "It imposes another element on the crime.”

Jackson shared with Colorado Public Radio, “I don’t think anyone would dispute that the experience of the victim was awful. But it’s another question about whether you have the state come forward with charges and incarcerate someone for this.”

He also shared insights with Law Week Colorado, noting, “the decision will likely only impact a handful of cases, when a defendant knew the words they were speaking but didn’t know or recklessly disregarded their meaning or potential to be taken as a threat. But for those cases, Jackson said prosecutors will have their work cut out for them.”

Read The National Law Journal article here: “High Court’s Cyberstalking Decision Buffs 1st Amendment, Complicates Prosecution,” June 27, 2023, (subscription needed).

Read The Denver Post article here: “U.S. Supreme Court Rejects Colorado’s Standard for Criminal Threats,” June 27, 2023, (subscription needed).

Read the Colorado Public Radio article here: “U.S. Supreme Court Says Colorado Violated Man’s First Amendment Rights with Stalking Conviction,” June 27, 2023.

Read the Law Week Colorado article here: “Supreme Court Overrules Colorado’s Standard for Determining ‘True Threat' Mens Rea,” June 28, 2023, (subscription needed).


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