Fictional Scenario - Counterman v. Colorado

Andy Jackson is a 21-year-old senior at Bay State College and captain of the College’s lacrosse team. Andy, who is known as “The Gunner” for his ripped biceps and aggressive style of play, is also a DJ and rapper whose lyrics get attention for their controversial double meanings. He grew up in Brooklyn and counts Jay-Z and other New York rappers as inspiration. In his free time, he’s become connected with a local music management group, which has booked him as a DJ for parties. His manager has not allowed him to play his own music yet.

Andy and Sarah Somers have gone through a difficult breakup, after which he says she started rumors alleging inappropriate behavior that could jeopardize his lacrosse scholarship. Friends tell Andy what she is saying, and he sees on the Whisper* app a series of damaging photos and videos that only Sarah could have posted. Andy is afraid that the allegations could cost him his place on the lacrosse team, which has a zero-tolerance policy regarding academic ethics, sexual misconduct, and illegal behavior.

Andy posts on Facebook a creative parody of some well-known rap lyrics implying that Sarah is a pathological liar who has gotten so wasted at parties that she has passed out. In the meantime, Sarah starts dating Sam Bennett, a high-profile player on a rival lacrosse team, but friends tell Andy that Sarah is still spreading rumors. 

In another post, on March 3, 2023, Andy shares a new song and lyrics, sampling from “Threat” by Jay-Z. Andy includes the following lyrics from “Threat”: “[T]his threat… I’m so serious about mine, I’m so sincere” and “Am I frightenin’ ya? Shall I continue? I put the gun to ya, I let it sing you a song.”

Andy adds his own lyrics which state that if Sarah keeps up the attacks on his reputation, she’ll “regret this day” because the next time she drinks too much at a party, she’ll learn a “new meaning of unconscious.” He also says that Sam should watch himself on the field because “The Gunner is locked and loaded.” Andy tags his management group in the post and shares that he felt inspired by his life when writing this song.

Sarah is still friends with Andy on Facebook and sees her name in his lyrics. She reads his entire post and is concerned enough that she and Sam go to the campus police and ask how to get a restraining order against Andy. They also report Andy’s posts to the director of campus life.

Friends tell Andy that Sarah is so concerned about his lyrics that she is thinking of withdrawing from college and returning to her home state. A campus police officer calls Andy and tells him to stop posting about Sarah and Sam or they will seek a restraining order and Andy could be charged with a crime.

Andy does not post for two days, but then the management group “likes” his post and comments that it wants to get Andy into the studio soon. Andy then posts a new song, on March 5, 2023, which states that “snitches running to the cops talking about restraining orders … better put that in your pocket and hope its thick enough to stop a bullet.” The lyrics again call out Sarah and Sam by name and repeat the refrain from “Threat” and also the statement that “the Gunner is locked and loaded.” Andy ends the post with skull, wink, and gun emojis. Andy also adds a statement in the comments section that his lyrics are “fake,” and his music is his therapy.

Ultimately, Andy is charged with two counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to “transmit [ ] in interstate or foreign commerce any communication containing…any threat to injure the person of another.”

At today’s hearing in federal court, Andy’s attorneys will argue that Andy’s statements were not true threats but are free speech protected by the Constitution. The Government will argue that Andy’s statements are true threats and not protected by the Constitution.

* Whisper was a form of anonymous social media, allowing users to post and share photo and video messages anonymously. The postings, called “whispers,” consisted of text superimposed over an image.