The Volokh Conspiracy

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Free Speech

A Rare Case Where the Court's New Threats Case (Counterman) May Make a Difference


In this year's Counterman v. Colorado, the Supreme Court held that "true threats" of illegal conduct are constitutionally unprotected but only if the speaker was reckless, i.e., "consciously disregarded a substantial risk that his communications would be viewed as threatening violence." Before that, many states had allowed such threats to be punished on just a showing that the speaker was negligent, i.e., "should [have been] aware of a substantial risk … that others will understand his words as threats."

In practice, it's hard to find cases where such a standard would likely change the outcome; but Thursday's Washington Court of Appeals decision in State v. Beal (written by Judge Robert Lawrence-Berrey, joined by Chief Judge George Fearing and Judge Rebecca Pennell), might be one such case. An excerpt:

Sara Beal lived with her 15-year-old daughter, K.F., in a multilevel townhome in Spokane. On the morning of September 13, 2021, K.F. awoke before her mother. She went into her mother's room a couple of times to check to see if her mother was awake and to ask when she would be getting up.

Later that morning, Ms. Beal entered K.F.'s room and asked why she was "poking" her while she was asleep. During this exchange, Ms. Beal jabbed K.F. three times on her leg with what appeared to be a screwdriver or nail. K.F. pushed her mother away, and Ms. Beal returned to her room.

One hour later, Ms. Beal returned to her daughter's room and began to argue and physically fight with her. They argued about Ms. Beal thinking people were after her and that a relative was stalking her. Ms. Beal then grabbed K.F. by her hair and hit her. Ms. Beal also pushed K.F. onto her bed and grabbed her neck with both hands. K.F. kicked Ms. Beal off her and pushed her out of the room.

K.F. ran downstairs, sat on the front porch and called 911 and then her grandmother. After 20 minutes, K.F. went back inside and returned to her room. During this time, K.F. called 911 a second time to tell the operator that she and her mother had worked it out and were not arguing anymore. Thirty minutes later, Ms. Beal entered K.F.'s room and demanded her cell phone. Ms. Beal removed the SIM card from K.F.'s phone, then gave the phone back to her. K.F. had another SIM card, which she put into her phone.

K.F. went back downstairs, and her mother later followed. They began fighting again. Ms. Beal ripped a wall-mounted air conditioning unit out of the wall, believing there were cameras inside it and said "it's all a set up" and accused K.F. of helping with "it." During this exchange, Ms. Beal threatened to bash K.F.'s head in and threatened to kill her. K.F. thought her mother was going to harm her and was trying to throw the air conditioner (AC) at her head. K.F. thought her mother threw something at her. Ms. Beal continued to chase K.F. around a table in their living room before the police called K.F.'s phone back….

The jury found Ms. Beal guilty of fourth degree assault and gross misdemeanor harassment [as to the threat] ….

The court concluded that there was sufficient evidence to support the conviction under the pre-Counterman negligence standard, which was in effect at the time of trial:

Ms. Beal had assaulted her daughter over a period of time and, while in the process of ripping the air conditioner from the wall, told her daughter that she was going to bash her head in and kill her. Given this context and given our standard of review, a trier of fact could reasonably find that a reasonable speaker would interpret the threat as a serious expression of an intent to inflict bodily harm on K.F….

But the court concluded that Counterman should be applied retroactively, and that the conviction for the threat should be reversed and remanded for a new trial:

The record shows that Ms. Beal was not lucid and was upset her daughter was recording her. One does not kill a person, much less a daughter, for secretly recording them…. A rational trier of fact could find that Ms. Beal's statements were not literal and that she was subjectively unaware of their threatening nature….

UPDATE: Just to be clear, on retrial the jury also could conclude that Beal did indeed act recklessly (and therefore should be convicted), in the sense of "consciously disregard[ing] a substantial risk that [her] communications would be viewed as threatening violence." The appellate court simply concludes that either conclusion would be possible, and thus leaves it to the jury to decide on retrial.