True Threats vs. Protected Speech in Colorado: Legal Meaning, Examples and Charges

You send an angry message online. You make a heated comment. You vent frustration with aggressive language. Suddenly, you’re facing criminal charges for harassment or disorderly conduct. What is protected speech under the First Amendment? What will get you served with criminal charges in Colorado?

The legal line between free speech and criminal threats has often been blurry. In 2023, the U.S. Supreme Court drew that line more clearly in Counterman v. Colorado. A case that started here in Colorado, and it made its way to the highest court in the land. The decision changed how prosecutors must prove threat cases and expanded First Amendment protections.

If you’re facing charges for threats, harassment, or stalking based on your words, understanding Counterman is crucial. Here’s what the case means for free speech and criminal law in Colorado.

The Counterman Case Facts

The Facts: Billy Raymond Counterman sent hundreds of Facebook messages to a Colorado musician named Coles Whalen over two years. The messages were disturbing:

• “Staying in cyber life is going to kill you.”
• “You’re not being good for human relations. Die.”
• “Was that you in the white Jeep?”
• “Five years of sheer hell. Over.”

Whalen didn’t know Counterman. She never responded to his messages. The messages terrified her. She cancelled shows, stopped walking alone, and feared for her safety.

The Charges

Colorado charged Counterman with stalking under C.R.S. § 18-3-602. The law prohibits repeatedly following, contacting, or making credible threats to another person in a manner that would cause a reasonable person serious emotional distress.

Counterman’s Defense

Counterman claimed his messages were protected speech. He argued the state needed to prove he intended to threaten Whalen, not just that she felt threatened. The trial court disagreed and convicted him.

The Supreme Court Decision

In June 2023, the Supreme Court sided with Counterman (sort of). The Court held that prosecutors must prove the defendant was at least reckless about whether their statements would be viewed as threats. A purely objective standard (whether a reasonable person would feel threatened) violates the First Amendment.

The Legal Standard Before Counterman

Before Counterman, Colorado used an objective test for true threats. Prosecutors only had to prove:

• A reasonable person would view the statement as a threat
• The statement would cause serious emotional distress
• The defendant made the statement knowingly

The defendant’s actual intent didn’t matter. Even if you were joking, venting, or never intended to threaten anyone, you could be convicted if a reasonable person would feel threatened.

This standard led to convictions based on misunderstood jokes, hyperbolic venting, and protected political speech.

The Legal Standard After Counterman

Now, the Colorado District Attorney must prove the defendant acted with at least recklessness regarding the threatening nature of their statements.

What Recklessness Means

• You consciously disregarded a substantial risk
• The risk was that your statement would be viewed as a threat
• You knew facts that made the threatening nature obvious
• You proceeded anyway despite that knowledge

What Prosecutors Must Prove

• The statement meets the definition of a threat
• A reasonable person would view it as threatening
• The defendant was at least reckless about whether it would be perceived as threatening

What’s Not Enough

• The victim felt threatened
• A reasonable person would feel threatened
• The defendant should have known better
• Negligence or carelessness

This subjective component protects speech that’s clumsy, poorly worded, or misunderstood, but not intended as threatening.

What Counts as a “True Threat”?

Not all threatening language is criminal. The Supreme Court has carved out categories of unprotected speech. True threats are one category.

True Threats Are

• Serious expressions of intent to commit violence
• Directed at a person or group
• Statements that communicate imminent harm
• Made intentionally, knowingly, or with reckless disregard

True Threats Are Not

• Political hyperbole
• Jokes (even tasteless ones)
• Venting frustration
• Conditional statements
• Exaggerated language
• Protected advocacy

One of the keys here is context. The same words can be criminal threats or protected speech depending on circumstances.

Protected Speech: What You Can Say

Here are a few examples of statements that would likely be considered to be protected speech under the First Amendment and Counterman.

Important Note: You can be charged with criminal behavior for many activities. Nothing in this article should be read to suggest any behavior is non-criminal in nature. These are examples of cases that may be argued as protected speech under the law. In every situation, you should discuss the facts of your case with an attorney.

• Political Hyperbole: “All politicians should be thrown out” or “The governor should be run out of town” are protected political speech, even if aggressive.
• Conditional Statements: “If you don’t leave me alone, you’ll regret it” is generally protected because it’s conditional on future action.
• Venting and Frustration: “I’m so mad I could kill someone,” expressed to a friend, is protected frustration, not a threat.
• Jokes and Sarcasm: “I’ll kill you if you’re late again!” said laughingly among friends is obvious hyperbole.
• Artistic Expression: Violent lyrics in music, violent scenes in movies, or aggressive poetry are generally protected.
• Advocacy of Illegal Action: You can advocate for illegal action in the abstract without making threats (with some exceptions).

Criminal Threats: What Crosses the Line

• Direct Threats: “I’m going to kill you” directed at a specific person can be a true threat depending on context.
• Specific Plans: “I know where you live. I’ll be waiting for you” shows planning and intent.
• Repeated Communications: Multiple messages over time, especially after being told to stop, suggest intent. This could likely be charged as harassment if it’s repeated, and there’s an intent to harass, annoy, alarm, or intimidate.
• Personal Knowledge: “I saw you at the grocery store yesterday in your green Toyota,” combined with a threat, shows surveillance and escalates concern.
• Combination of Factors: Words combined with behavior (following someone, showing up at their home) strengthen threat claims.

The “Fire in a Crowded Theater” Myth

You’ve heard the phrase: “You can’t yell fire in a crowded theater.” This supposedly proves speech has limits. But this phrase is misleading and legally outdated.

The Origin

Justice Oliver Wendell Holmes used this phrase in Schenck v. United States (1919) to uphold criminal convictions for opposing the military draft during World War I.

The Problem

The Schenck decision has been largely overturned. Brandenburg v. Ohio (1969) established much stronger free speech protections.

The Reality

You actually can yell fire in a crowded theater if there’s a fire. You can probably yell it even if there’s no fire, though you might face civil liability for resulting injuries. It’s not necessarily criminal. But it could be charged under certain municipal ordinances like disorderly conduct.

What It Really Means

Speech that creates imminent lawless action or immediate physical danger may be restricted. But the standard is very high. The speech must be intended to incite immediate illegal action and likely to do so.

Bottom Line

Don’t rely on the “fire in a crowded theater” analogy. It’s not good law and oversimplifies free speech protections. It’s still a very bad idea, and the DA may try to charge you with disorderly conduct or you could be exposed to civil liability.

Scenarios: Threat or Protected Speech?

Below are a few examples of speech applying a Counterman and Brandenburg analysis. I don’t recommend testing any of these situations out, as you can always be charged if a police officer believes that there is probable cause that you have violated the statute. It could be time-consuming and expensive to fight the charges. Let’s look at some scenarios and consider the law.

Scenario 1: “I’ll kill you for being late!”

• Said jokingly to a friend who’s chronically late
• Both parties laugh
• No history of violence
• Likely Protected: Context shows jest, no reasonable person would perceive genuine threat

Scenario 2: “I’ll kill you for being late!”

• Said angrily to an employee
• You’re the boss with power over the person
• Said in private, no witnesses
• History of hostile work environment
• Possibly Criminal: Power dynamics, lack of joking context, reasonable fear created

Scenario 3: “Politicians like you should be hanged”

• Said at political rally
• Directed at general class of politicians
• No specific person targeted
• Likely Protected: Political hyperbole, not directed at specific individual

Scenario 4: “I know where you live. You should watch your back”

• Sent via text message
• Directed at specific person
• Person has restraining order against you
• You’ve driven by their house
• Likely Criminal: Specific, personal knowledge, pattern of behavior, violates court order

Scenario 5: Song lyrics with violent content

• Rap song about violence against police
• Artistic expression
• No specific officers named
• No imminent threat
• Likely Protected: Artistic expression, no specific target, Brandenburg standard not met

Scenario 6: Multiple messages after being told to stop

• “You’ll regret ignoring me”
• “I’m watching you”
• “You can’t hide forever”
• Sent after victim said “stop contacting me”
• Likely Criminal: Pattern of behavior, continued after warning, surveillance language. This would likely be charged as harassment.

Again, I certainly don’t advocate putting these scenarios to the test, and every situation has its own details. So please be nice to each other, but if you find yourself charged with a crime that you think is protected speech under Colorado law, give me a call to discuss.

Common charges:

• Harassment
• Disorderly conduct
• Stalking
• Menacing

Colorado Stalking Law After Counterman

Colorado’s stalking statute (C.R.S. § 18-3-602) must now be applied consistent with Counterman.

What Prosecutors Must Prove

• You repeatedly followed, approached, contacted, or surveilled someone
• Your conduct would cause a reasonable person serious emotional distress
• You acted recklessly regarding whether your conduct would be perceived as threatening

What Changed

Before Counterman, prosecutors only needed to prove your conduct would cause distress. Now they must prove you acted intentionally, knowingly or recklessly about the threatening nature of your conduct.

Impact on Cases

Many borderline stalking cases will now fail. Awkward attempts at romance, persistent but non-threatening contact, and misunderstood communications have stronger defenses.

Harassment Charges in Colorado

Colorado’s harassment statute (C.R.S. § 18-9-111) also requires subjective intent after Counterman.

Types of Harassment

• Strikes, shoves, or kicks
• Follows in public
• Initiates unwanted communication
• Makes obscene gestures or comments
• Repeatedly insults or taunts

Counterman’s Impact

For threat-based harassment, prosecutors must prove knowing intent or recklessness. For non-threat harassment (following, taunting), the objective standard may still apply.

Defending Against Threat Charges

If you’re facing charges for threats, stalking, or harassment, several defenses may apply:

• Lack of Subjective Intent: You didn’t intend the statement as a threat and weren’t reckless about how it would be perceived.
• Context Negates Threat: The circumstances show your statement was a joke, hyperbole, or protected speech.
• Conditional Statement: Your statement was conditional on future action by the other person.
• Political or Artistic Expression: Your statement was political advocacy or artistic expression protected by the First Amendment.
• No Reasonable Perception: Even if you were reckless, a reasonable person wouldn’t view your statement as threatening.
• False Accusation: The alleged victim fabricated or exaggerated your statements.

Why Legal Representation Matters

Counterman changed the legal landscape for threat prosecutions. Many cases that would have resulted in convictions under the old standard now have strong defenses.

An Experienced Attorney Can

• Apply Counterman’s subjective standard to your case
• Challenge prosecution’s evidence of recklessness
• Present context showing protected speech
• Identify First Amendment defenses
• Negotiate dismissals or reduced charges based on Counterman or Brandenburg

What’s at Stake

• Criminal record
• Jail time
• Restraining orders
• Loss of gun rights
• Employment consequences
• Professional license impacts

The Broader First Amendment Picture

Counterman is part of a larger body of First Amendment law protecting speech:

• Brandenburg v. Ohio: Speech advocating illegal action is protected unless it incites imminent lawless action.
• Virginia v. Black: True threats can be criminalized, but prosecutions require proof of intent to intimidate.
• Elonis v. United States: Federal threat prosecutions require more than negligence (though Elonis left open the recklessness standard).
• Counterman v. Colorado: State threat prosecutions require at least recklessness about threatening nature.

Together, these cases establish strong protections for speech that’s angry, offensive, or even disturbing, as long as it’s not truly threatening.

Practical Advice

Before You Post, Text, or Speak

• Consider how your words could be perceived
• Avoid language about violence, even jokingly, in heated situations
• Don’t contact people who’ve asked you to stop
• Don’t combine concerning words with concerning behavior
• Remember: online communications are permanent records

If You’re Investigated or Charged

• Don’t speak to police without an attorney
• Don’t try to explain or clarify statements to investigators
• Don’t contact the alleged victim
• Don’t post about the case online
• Contact an experienced criminal defense attorney immediately

Your Next Steps

Counterman v. Colorado strengthened First Amendment protections for speech in Colorado. But the line between protected speech and criminal threats remains complex and fact-specific. Context matters. Intent matters. And experienced legal representation matters most of all.

If you’re facing charges for threats, stalking, or harassment in Colorado Springs, contact our defense team today. We understand how Counterman applies to these cases and how to build First Amendment defenses that protect your rights and your freedom.

Don’t let a misunderstood statement or overzealous prosecution destroy your future. Get experienced legal help from attorneys who understand free speech law and know how to defend threat cases in the post-Counterman landscape.

If you’ve been charged with menacing, stalking, harassment, or disorderly conduct in Colorado Springs, call our Defense lawyers at McDowell Law firm to discuss your case. Our offices are located in downtown Colorado Springs in the 1st Bank Building on the corner of Cascade Ave and Pikes Peak Ave.

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