COUNTERMAN V. COLORADO: IS RECKLESSNESS AN EMERGING THREAT TO HATE SPEECH IMPUNITY?

Authors

• Jason Zenor

Abstract

Many people believe that the First Amendment provides too much protection for harmful speech, as the legal system struggles to balance these free speech protections with the harms amplified by the digital era. In cases involving online threats, the U.S. Supreme Court’s true threats doctrine made prosecution difficult, as the government had to show beyond a reasonable doubt that the speaker intended to threaten a specific target. Then, in 2023, the U.S. Supreme Court lowered the constitutional bar for true threats. The Court held that the government only had to show that the speaker was reckless and understood that the speech could be taken as a threat, likely making it easier to prosecute threats. In response, this article postulates how the recent change to the ‘true threats’ doctrine could be applied to another category of harmful speech- hate speech. The article proposes a theory of ‘reckless intimidation’ in cases involving private actors, while warning against using this standard when the speech is a matter of public concern.

Recommended Citation

Jason Zenor, COUNTERMAN V. COLORADO: IS RECKLESSNESS AN EMERGING THREAT TO HATE SPEECH IMPUNITY?, 48 W. New Eng. L. Rev. 278 (2026), https://digitalcommons.wne.edu/lawreview/vol48/iss2/2