A defendant who never opens the replies tab cannot consciously disregard what is in it. That sentence, more than any other, captures the structural mismatch between the Supreme Court's 2023 ruling in Counterman v. Colorado and the way Americans actually post in 2026. Two and a half years after the Court rewrote the mental state required for a 'true threat' prosecution, federal and state prosecutors are losing motions, narrowing charges, and walking away from cases that would have been straightforward convictions under the old objective test.
For people charged with online threats, cyberstalking, or interstate communications offenses, Counterman is the single most important development in First Amendment criminal law in a generation. For prosecutors, it is a daily evidentiary problem with no clean solution.
What Counterman actually held
On June 27, 2023, the Supreme Court ruled 7-2 in Counterman v. Colorado, 600 U.S. 66, that the First Amendment requires at least a recklessness mental state before the government can punish a defendant for a 'true threat.' Justice Elena Kagan, writing for the majority, defined the standard this way: the defendant must have 'consciously disregarded a substantial risk that his communications would be viewed as threatening violence.' Negligence, meaning the defendant should have known, is not enough.
The underlying conduct involved Billy Raymond Counterman, who sent hundreds of Facebook messages to Colorado musician Coles Whalen over roughly two years. Many of the messages were never seen because Whalen blocked him repeatedly. Colorado courts originally affirmed his conviction under a purely objective 'reasonable listener' standard, asking only whether the messages would frighten a reasonable person. The Supreme Court vacated and remanded. On remand, Colorado retried Counterman under the new recklessness instruction, and a jury again convicted him in 2024, as documented in the state proceedings on remand.
Justice Sonia Sotomayor, joined in part by Justice Neil Gorsuch, concurred but argued the Court should have required specific intent in most cases, particularly political speech. Justices Clarence Thomas and Amy Coney Barrett dissented, defending the older reasonable-listener test.
The doctrinal road from Watts to Counterman
True threats are an unprotected category of speech, but the doctrine has always been narrow. The First Amendment Encyclopedia traces the modern line from Watts v. United States (1969), which excluded political hyperbole, through Virginia v. Black (2003), which addressed cross-burning and signaled but did not resolve the mental-state question.
Counterman finally answered the open question Black left behind. As Eugene Volokh observed in same-day analysis, the Court borrowed its recklessness concept by analogy from New York Times v. Sullivan defamation doctrine, not from the Model Penal Code. That analogy is doing a lot of work, and it has created an unresolved interpretive question: when courts ask whether a defendant 'consciously disregarded' risk, are they applying a civil-style standard rooted in actual-malice case law, or a criminal-style standard with the more demanding subjective awareness criminal practitioners are used to? The Harvard Law Review case comment treats this ambiguity as the central doctrinal rupture of the decision.
Proof problem #1: Ephemeral content
Counterman assumes a speaker who can later be confronted with the artifact of the speech. TikTok Lives, Instagram Stories, Snapchat messages, disappearing Telegram messages, and deleted X posts often do not survive long enough to be preserved. Prosecutors must reconstruct what the defendant subjectively perceived at the moment of posting, frequently without the original recording.
The Knight First Amendment Institute has flagged this as a structural enforcement problem, not a temporary evidentiary gap. Even when platform logs exist, they typically show that a post happened, not what the defendant was thinking about its likely reception.
Proof problem #2: Broadcast posters who never read replies
X (formerly Twitter), Telegram broadcast channels, Truth Social, and Threads all support a posting style in which the speaker pushes content into a one-to-many channel and never reads what comes back. The amicus brief filed by the Electronic Frontier Foundation and the ACLU in Counterman itself warned that platform-mediated speech often involves speakers with no realistic awareness of any particular audience member.
Under the new standard, this is not a rhetorical point. It is a charging decision. If the government cannot prove the defendant was conscious of a substantial risk that a specific recipient or class of recipients would read the post as a threat of violence, the prosecution fails on the mental-state element regardless of how alarming the post sounds.
Proof problem #3: Algorithmic amplification
Recommender systems route posts to viewers the speaker never selected. Defense counsel are arguing, with growing success, that a defendant cannot consciously disregard a risk to viewers the algorithm surfaced without their knowledge. Prosecutors counter that posting on a public platform with a known recommender system is itself reckless conduct toward whoever the system reaches.
Neither position is settled. The Knight Institute and the Foundation for Individual Rights and Expression (FIRE) have both noted that Counterman did not contemplate algorithmic distribution, and that the answer likely depends on whether courts treat the platform's design as part of the defendant's subjective awareness or as an intervening cause.
Proof problem #4: AI-generated and reshared content
Counterman presumes a human speaker subjectively aware of the message's content. Deepfaked threats, large-language-model rants reshared by third parties, and synthetic audio attributed to a real person all complicate the speaker-identity prong. If the disseminator is a third party and the original 'speaker' is a model, whose mental state matters?
The decision provides no answer. The Harvard Law Review treatment identifies this as one of the most pressing open questions, and one that the existing federal threats statutes (18 U.S.C. sec. 875(c), sec. 871, and sec. 2261A) were not drafted to handle.
The federal circuit picture
According to the Congressional Research Service, federal circuits have begun applying Counterman to the principal federal threats statutes: 18 U.S.C. sec. 875(c) (interstate threats), sec. 871 (threats against the President), and sec. 2261A (cyberstalking). The Fourth, Fifth, Ninth, and Eleventh Circuits have all issued notable post-Counterman opinions through 2024 and 2025, and the early splits are concentrated in two places: what counts as sufficient evidence to permit a jury to infer recklessness from posting context, and whether higher mens rea applies to certain subcategories.
The Court in Counterman expressly left open whether a higher mental state applies to particular categories such as incitement, terroristic threats, and core political speech. That invitation has been accepted.
Why cyberstalking is mostly surviving
One statute has largely survived Counterman challenges: 18 U.S.C. sec. 2261A. As Lawfare has detailed, the cyberstalking statute already requires proof of intent to kill, injure, harass, intimidate, or surveil. That intent element exceeds recklessness, so most cyberstalking prosecutions clear the Counterman floor automatically.
The practical result is that federal prosecutors are increasingly charging conduct under sec. 2261A where they used to charge it under sec. 875(c), because the statutory mens rea already does the work Counterman now requires.
The DOJ playbook
The Department of Justice issued internal guidance to U.S. Attorneys in January 2024 directing prosecutors to document the evidentiary footprint that supports a recklessness finding: prior victim notifications, blocks, cease-and-desist letters, prior contacts, doxxing patterns, and platform takedown notices. The Justice Manual section on threats against the President reflects the same priority on documenting subjective awareness through pattern-of-conduct evidence.
For defendants, this means the charging decision often turns on what the government can show the defendant knew before posting, not on the content of the post itself.
The defense playbook
Defense counsel are running a recognizable set of motions. Motions in limine seek to exclude pure reasonable-listener evidence as irrelevant to the subjective inquiry. Proposed jury instructions emphasize that the question is what the defendant actually perceived, not what a reasonable person would have perceived. Expert testimony on platform mechanics, default settings, and recommender behavior is being offered to negate the inference of conscious disregard. And First Amendment as-applied challenges are being filed early, often before the government has finished discovery.
Where the post is core political speech, defense filings increasingly cite Justice Sotomayor's concurrence and argue for a higher specific-intent standard, even though that standard is not yet the majority rule.
Case studies in friction
The new standard is being tested in three recurring fact patterns. The first is protest-adjacent prosecutions, including January 6 follow-on cases, campus speech cases tied to pro-Palestine and pro-Israel demonstrations, and posts near abortion clinics. Motions to dismiss citing Counterman have produced mixed results.
The second is serial online harassers, the fact pattern closest to Counterman itself. These cases tend to survive when the government can document repeated victim contact, blocks, and prior warnings. They fail when the speech is one-way broadcasting with no targeted recipient.
The third is political figures, including candidates and elected officials whose public posts attract enforcement attention. Here the Sotomayor concurrence is doing the most work, and lower courts are visibly uncomfortable with prosecutions that look like content-based regulation of political speech.
State-level fragmentation
State appellate courts in Colorado, California, New York, Texas, and Florida are diverging on jury instructions and on what counts as sufficient evidence of conscious disregard. The result is real geographic variation in exposure for identical conduct. A post that supports prosecution in one state may not in another, depending on how that state's pattern instruction defines 'consciously disregarded' and how its appellate courts treat circumstantial proof of subjective awareness.
What to watch in 2026
Several cert petitions are queued at the Supreme Court that could narrow or clarify Counterman, particularly on the political-speech carveout Sotomayor flagged. Congress has not yet responded with a statutory mens rea fix to the federal threats statutes, although the Congressional Research Service has outlined the available legislative options. Until either the Court or Congress acts, the recklessness inquiry will continue to swallow these prosecutions case by case.
Practitioner takeaways
For people facing online threats charges, three points matter most. First, the content of the post is no longer the whole case. The government has to prove what you knew about how it would land. Second, evidence of your platform habits, including whether you read replies, whether you blocked the recipient, and whether you saw warnings, is now central. Third, charging decisions are visibly shifting toward cyberstalking under sec. 2261A and away from pure threats under sec. 875(c), because the cyberstalking statute's existing intent element survives Counterman cleanly.
For prosecutors, the implication is the inverse: the case has to be built before the post, not just around it. Documentation of prior contact, prior warnings, and prior knowledge is now the spine of a threats prosecution, not garnish on it.
Related reading
Sources
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Congressional Research Service, The First Amendment and True Threats After Counterman
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Colorado Supreme Court remand decision in People v. Counterman
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Lawfare on Counterman, cyberstalking, and the recklessness puzzle
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