R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Counterman v. Colorado: True Threats, Speech Harms, and Missed Opportunities on SSRN. Here is the abstract:
Some Supreme Court cases amount at best to missed opportunities. The Supreme Court’s recent case of Counterman v. Colorado resolved, dubiously, one particular issue of mens rea. In the course of doing so, however, the Court ignored issues of even greater significance. The Counterman case involved a state court criminal conviction for issuing a true threat of violence, or more simply, a true threat. True threats, as defined by the Court, comprise a traditionally unprotected category of speech. Nevertheless, the majority in Counterman unnecessarily, and inadvisedly, extended a substantial measure of constitutional protection to issuing true threats. Overall, the focus of the Court in Counterman was misdirected, resulting in an intuitive judicial balancing with likely negative net effects, a distraction from more important considerations, and a missed opportunity to upgrade the relevant law.