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Counterman v. Colorado

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Docket No. Op. Below Argument Opinion Vote Author Term
22-138 Colo. App. Apr 19, 2023
 Jun 27, 2023 7-2 Kagan OT 2022

Holding: To establish that a statement is a “true threat” unprotected by the First Amendment, the state must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.

Judgment: Vacated and remanded, 7-2, in an opinion by Justice Kagan on June 27, 2023. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined as to Parts I, II, III-A, and III-B. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion, in which Justice Thomas joined.

SCOTUSblog Coverage

DateProceedings and Orders (key to color coding)
Jun 27 2022Application (21A873) to extend the time to file a petition for a writ of certiorari from July 10, 2022 to September 8, 2022, submitted to Justice Gorsuch.
Jun 29 2022Application (21A873) granted by Justice Gorsuch extending the time to file until August 9, 2022.
Aug 09 2022Petition for a writ of certiorari filed. (Response due September 12, 2022)
Aug 17 2022Motion to extend the time to file a response from September 12, 2022 to October 12, 2022, submitted to The Clerk.
Aug 18 2022Motion to extend the time to file a response is granted and the time is extended to and including October 12, 2022.
Sep 12 2022Brief amicus curiae of Cato Institute filed.
Sep 12 2022Brief amicus curiae of The Rutherford Institute filed.
Oct 12 2022Brief of respondent Colorado in opposition filed.
Oct 26 2022Reply of petitioner Billy Raymond Counterman filed.
Nov 02 2022DISTRIBUTED for Conference of 11/18/2022.
Nov 28 2022DISTRIBUTED for Conference of 12/2/2022.
Dec 05 2022DISTRIBUTED for Conference of 12/9/2022.
Jan 03 2023DISTRIBUTED for Conference of 1/6/2023.
Jan 09 2023DISTRIBUTED for Conference of 1/13/2023.
Jan 13 2023Petition GRANTED.
Jan 31 2023SET FOR ARGUMENT on Wednesday, April 19, 2023.
Feb 08 2023Record requested from the Court of Appeals of Colorado.
Feb 21 2023Register of actions and briefs received from Court of Appeals of Colorado. Record request also transmitted to trial court.
Feb 22 2023Brief of petitioner Billy Raymond Counterman filed.
Feb 22 2023Joint appendix (3 volumes) filed. (Statement of costs filed)
Feb 28 2023Electronic record transmitted from Arapahoe Combined Court (Colorado).
Feb 28 2023Brief amici curiae of Cato Institute, et al. filed.
Mar 01 2023Brief amici curiae of Southwestern law student Elena Cordonean, et al. filed.
Mar 01 2023Brief amicus curiae of Foundation for Individual Rights and Expression filed.
Mar 01 2023Brief amicus curiae of Reporters Committee for Freedom of the Press filed.
Mar 01 2023Brief amici curiae of Electronic Frontier Foundation, et al. filed.
Mar 01 2023Amicus brief of American Civil Liberties Union, et al. In Support of Petitioner. not accepted for filing (Corrected version to be submitted--March 03, 2023).
Mar 01 2023Brief amici curiae of American Civil Liberties Union, et al. filed (Mar. 8, 2023).
Mar 01 2023Brief amicus curiae of Human Rights for Kids filed.
Mar 06 2023Brief amicus curiae of Jack Jordan in support of neither party filed.
Mar 06 2023Brief amicus curiae of Alliance Defending Freedom in support of neither party filed.
Mar 24 2023CIRCULATED
Mar 24 2023Brief of respondent Colorado filed. (Distributed)
Mar 30 2023Brief amici curiae of Legal Momentum, et al. filed. (Distributed)
Mar 30 2023Brief amicus curiae of Criminal Justice Legal Foundation filed. (Distributed)
Mar 31 2023Brief amici curiae of Lawyers' Committee for Civil Rights Under Law, et al. filed. (Distributed)
Mar 31 2023Brief amici curiae of First Amendment Scholars, Evelyn Douek, et al. filed. (Distributed)
Mar 31 2023Brief amicus curiae of the United States filed. (Distributed)
Mar 31 2023Brief amicus curiae of Coles Whalen filed. (Distributed)
Mar 31 2023Brief amici curiae of First Amendment Scholars, Dean Erwin Chemerinsky, et al. filed. (Distributed)
Mar 31 2023Brief amici curiae of National Family Violence Law Center; et al. filed. (Distributed)
Mar 31 2023Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Mar 31 2023Brief amici curiae of Illinois, et al. filed. (Distributed)
Apr 07 2023Reply of petitioner Billy Raymond Counterman filed. (Distributed)
Apr 14 2023Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Apr 19 2023Argued. For petitioner: John P. Elwood, Washington, D. C. For respondent: Philip J. Weiser, Attorney General, Denver, Colo.; and Eric J. Feigin, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.)
Jun 27 2023Judgment VACATED and case REMANDED. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Kavanaugh, and Jackson, JJ., joined. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined as to Parts I, II, III–A, and III–B. Thomas, J., filed a dissenting opinion. Barrett, J., filed a dissenting opinion, in which Thomas, J., joined.
Jul 31 2023Judgment and mandate issued.