A Win for the First Amendment

For the past decade, Elsa has been at the forefront of defending against criminal charges on First Amendment grounds. At the trial level, Elsa’s advocacy has helped shape First Amendment jurisprudence in Colorado and across the country.

R.D.’s case made its way to the Colorado Supreme Court after R.D. challenged his prosecution as violative of constitutional guarantees of free speech. The case involved the unique issue of how the First Amendment intersects with communications made over the internet. After hearing the case, the Colorado Supreme Court outlined a new test for determining what constitutes a “true threat.” The First Amendment does not protect true threats. After applying the test, the Court ruled that R.D.’s speech did not qualify as true threats, and his adjudication was reversed. People in Interest of R.D., 464 P.3d 717 (Colo. 2020).

Several years later, in People v. Counterman, Counterman raised similarly challenged the constitutionality of his prosecution under the First Amendment. Counterman argued that his communications did not rise to the level of “true threats” and were, therefore, protected speech.  Despite a loss at the trial level, Counterman’s arguments were preserved so that the case could eventually be heard by the United States Supreme Court. The Court vacated Counterman’s conviction and added an additional requirement that prosecutors would now have to prove in order to comply with First Amendment protections. Instead of the objective standard previously upheld by Colorado courts, the US Supreme Court held that the government must show that a “defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” The ruling was celebrated by criminal defense advocates and will change the landscape of future prosecutions. Counterman v. Colorado, 143 S.Ct. 2106 (2023).