COUNTERMAN v. COLORADO

Certiorari To The Court Of Appeals Of Colorado

No. 22–138. Argued April 19, 2023—Decided June 27, 2023

From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged violent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined social engagements, and canceled some of her performances. C. W. eventually contacted the authorities. The State charged Counterman under a Colorado statute making it unlawful to “[r]epeatedly . . . make[ ] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. §18–3–602(1)(c). Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution. Following Colorado law, the trial court rejected that argument under an objective standard, finding that a reasonable person would consider the messages threatening. Counterman appealed, arguing that the First Amendment required the State to show not only that his statements were objectively threatening, but also that he was aware of their threatening character. The Colorado Court of Appeals disagreed and affirmed his conviction. The Colorado Supreme Court denied review.

Held: The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness. Pp. 4–14.

 (a) The First Amendment permits restrictions upon the content of speech in a few limited areas. Among these historic and traditional categories of unprotected expression is true threats. True threats are “serious expression[s]” conveying that a speaker means to “commit an act of unlawful violence.” Virginia v. Black, 538 U. S. 343, 359. The existence of a threat depends not on “the mental state of the author,” but on “what the statement conveys” to the person on the receiving end. Elonis v. United States, 575 U. S. 723, 733. Yet the First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability. That is because bans on speech have the potential to chill, or deter, speech outside their boundaries. An important tool to prevent that outcome is to condition liability on the State’s showing of a culpable mental state. Speiser v. Randall, 357 U. S. 513, 526. That kind of “strategic protection” features in this Court’s precedent concerning the most prominent categories of unprotected speech. Gertz v. Robert Welch, Inc., 418 U. S. 323, 342. With regard to defamation, a public figure cannot recover for the injury such a statement causes unless the speaker acted with “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U. S. 254, 280. The same idea arises in the law respecting obscenity and incitement to unlawful conduct. See, e.g., Hess v. Indiana, 414 U. S. 105, 109; Hamling v. United States, 418 U. S. 87, 122–123. And that same reasoning counsels in favor of requiring a subjective element in a true-threats case. A speaker’s fear of mistaking whether a statement is a threat, fear of the legal system getting that judgment wrong, and fear of incurring legal costs all may lead a speaker to swallow words that are in fact not true threats. Insistence on a subjective element in unprotected-speech cases, no doubt, has a cost: Even as it lessens chill of protected speech, it makes prosecution of otherwise proscribable, and often dangerous, communications harder. But a subjective standard is still required for true threats, lest prosecutions chill too much protected, non-threatening expression. Pp. 5–10.

 (b) In this context, a recklessness standard—i.e., a showing that a person “consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another,” Voisine v. United States, 579 U. S. 686, 691—is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats—with diminished returns for protected expression. Using a recklessness standard also fits with this Court’s defamation decisions, which adopted a recklessness rule more than a half-century ago. The Court sees no reason to offer greater insulation to threats than to defamation. While this Court’s incitement decisions demand more, the reason for that demand—the need to protect from legal sanction the political advocacy a hair’s-breadth away from incitement—is not present here. For true threats, recklessness strikes the right balance, offering “enough ‘breathing space’ for protected speech,” without sacrificing too many of the benefits of enforcing laws against true threats. Elonis, 575 U. S., at 748. Pp. 10–14.

 (c) The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman’s part of his statements’ threatening character. That is a violation of the First Amendment. P. 14.

497 P. 3d 1039, vacated and remanded.

 Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Kavanaugh, and Jackson, JJ., joined. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined as to Parts I, II, III–A, and III–B. Thomas, J., filed a dissenting opinion. Barrett, J., filed a dissenting opinion, in which Thomas, J., joined.


MOORE, in his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, et al. v. HARPER et al.

Certiorari To The Supreme Court Of North Carolina

No. 21–1271. Argued December 7, 2022—Decided June 27, 2023

The Elections Clause of the Federal Constitution requires “the Legislature” of each State to prescribe the rules governing federal elections. Art. I, §4, cl. 1. This case concerns the claim that the Clause vests state legislatures with authority to set rules governing federal elections free from restrictions imposed under state law. Following the 2020 decennial census, North Carolina’s General Assembly drafted a new federal congressional map, which several groups of plaintiffs challenged as an impermissible partisan gerrymander in violation of the North Carolina Constitution. The trial court found partisan gerrymandering claims nonjusticiable under the State Constitution, but the North Carolina Supreme Court reversed. Harper v. Hall, 380 N. C. 317, 868 S. E. 2d 499 (Harper I). While acknowledging that partisan gerrymandering claims are outside the reach of federal courts, see Rucho v. Common Cause, 588 U. S. ___, ___, the State Supreme Court held that such questions were not beyond the reach of North Carolina courts. The court also rejected the argument that the Federal Elections Clause vests exclusive and independent authority in state legislatures to draw federal congressional maps. The court enjoined the use of the maps and remanded the case to the trial court for remedial proceedings. The legislative defendants then filed an emergency application in this Court, citing the Elections Clause and requesting a stay of the North Carolina Supreme Court’s decision. This Court declined to issue a stay, but later granted certiorari.

  After this Court granted certiorari, the North Carolina Supreme Court issued a decision addressing a remedial map adopted by the trial court. Harper v. Hall, 383 N. C. 89, 125, 881 S. E. 2d 156, 181 (Harper II). The North Carolina Supreme Court then granted the legislative defendants’ request to rehear that remedial decision in Harper II. The court ultimately withdrew the opinion in Harper II concerning the remedial maps and overruled Harper I, repudiating its holding that partisan gerrymandering claims are justiciable under the North Carolina Constitution. The court dismissed plaintiffs’ claims but did not reinstate the 2021 congressional plans struck down in Harper I under the State Constitution. This Court has entertained two rounds of supplemental briefing on jurisdictional questions in light of the state court’s rehearing proceedings.

Held:

 1. This Court has jurisdiction to review the judgment of the North Carolina Supreme Court in Harper I that adjudicated the Federal Elections Clause issue. A corollary to this Court’s jurisdiction over “Cases” and “Controversies” is that there must exist a dispute “at all stages of review, not merely at the time the complaint is filed.” Genesis HealthCare Corp. v. Symczyk, 569 U. S. 66, 71 (internal quotation marks omitted). The North Carolina Supreme Court’s decision to withdraw Harper II and overrule Harper I does not moot this case. Prior to the appeal and rehearing proceedings in Harper II, the court had already entered the judgment and issued the mandate in Harper I, and the legislative defendants acknowledged that they would remain bound by Harper I’s decision enjoining the use of the 2021 plans. When the North Carolina Supreme Court “overruled” Harper I as part of the rehearing proceedings, it repudiated Harper I’s conclusion that partisan gerrymandering claims are justiciable under the North Carolina Constitution. But the court did not purport to alter or amend the judgment in Harper I enjoining the use of the 2021 maps. Were this Court to reverse Harper I, the 2021 plans would again take effect. Because the legislative defendants’ path to complete relief runs through this Court, the parties continue to have a “personal stake in the ultimate disposition of the lawsuit” sufficient to maintain this Court’s jurisdiction. Chafin v. Chafin, 568 U. S. 165, 172 (internal quotation marks omitted).

 This Court also has jurisdiction to review the judgment in Harper I under 28 U. S. C. §1257(a), which provides that jurisdiction in this Court extends to “[f]inal judgments . . . rendered by the highest court of a State in which a decision could be had.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, identified categories of cases in which a decision of a State’s highest court was considered a final judgment for §1257(a) purposes despite the anticipation of additional lower court proceedings, including “cases . . . in which the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future statecourt proceedings.” Id., at 480. Harper I is such a case. Because subsequent proceedings have neither altered Harper I’s analysis of the federal issue nor negated the effect of the Harper I judgment striking down the 2021 plans, that issue both has survived and requires decision by this Court. Pp. 6–11.

 2. The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.

  Marbury v. Madison, 1 Cranch 137, famously proclaimed this Court’s authority to invalidate laws that violate the Federal Constitution. But Marbury did not invent the concept of judicial review. State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era. James Madison extolled judicial review as one of the key virtues of a constitutional system, and the concept of judicial review was so entrenched by the time the Court decided Marbury that Chief Justice Marshall referred to it as one of society’s “fundamental principles.” Id., at 177.

  The Elections Clause does not carve out an exception to that fundamental principle. When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review. Pp. 11–26.

  (a) In Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, this Court examined the Elections Clause’s application to a provision of the Ohio Constitution permitting the State’s voters to reject, by popular vote, any law enacted by the State’s General Assembly. This Court upheld the Ohio Supreme Court’s determination that the Federal Elections Clause did not preclude subjecting legislative acts under the Clause to a popular referendum, rejecting the contention that “to include the referendum within state legislative power for the purpose of apportionment is repugnant to §4 of Article I [the Elections Clause].” Id., at 569. And in Smiley v. Holm, 285 U. S. 355, this Court considered the effect of a Governor’s veto, pursuant to his authority under the State’s Constitution, of a congressional redistricting plan. This Court held that the Governor’s veto did not violate the Elections Clause, reasoning that a state legislature’s “exercise of . . . authority” under the Elections Clause “must be in accordance with the method which the State has prescribed for legislative enactments.” Id., at 367. The Court highlighted that the Federal Constitution contained no “provision of an attempt to endow the legislature of the State with power to enact laws in any manner other than that in which the constitution of the State has provided that laws shall be enacted.” Id., at 368.

 This Court recently reinforced the teachings of Hildebrant and Smiley in Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, a case concerning the constitutionality of an Arizona ballot initiative to amend the State Constitution and to vest redistricting authority in an independent commission. Significantly for present purposes, the Court embraced the core principle espoused in Hildebrant and Smiley: Whatever authority was responsible for redistricting, that entity remained subject to constraints set forth in the State Constitution. The Court dismissed the argument that the Elections Clause divests state constitutions of the power to enforce checks against the exercise of legislative power.

 The basic principle of these cases—reflected in Smiley’s unanimous command that a state legislature may not “create congressional districts independently of” requirements imposed “by the state constitution with respect to the enactment of laws,” 285 U. S., at 373—commands continued respect. Pp. 15–18.

  (b) The precedents of this Court have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution. The argument to the contrary does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life. Thus, when a state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the state legislature’s exercise of power.

  This Court’s decision in McPherson v. Blacker, 146 U. S. 1, in which the Court analyzed the Constitution’s similarly worded Electors Clause, is inapposite. That decision did not address any conflict between state constitutional provisions and state legislatures. Nor does Leser v. Garnett, 258 U. S. 130, which involved a contested vote by a state legislature to ratify a federal constitutional amendment, help petitioners. That case concerned the power of state legislatures to ratify amendments to the Federal Constitution. But fashioning regulations governing federal elections “unquestionably calls for the exercise of lawmaking authority.” Arizona State Legislature, 576 U. S., at 808, n. 17. And the exercise of such authority in the context of the Elections Clause is subject to the ordinary constraints on lawmaking in the state constitution. Pp. 18–22.

  (c) Petitioners concede that at least some state constitutional provisions can restrain a state legislature’s exercise of authority under the Elections Clause, but they read Smiley and Hildebrant to differentiate between procedural and substantive constraints. But neither case drew such a distinction, and petitioners do not in any event offer a defensible line between procedure and substance in this context. Pp. 22–24.

  (d) Historical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause. Two state constitutional provisions adopted shortly after the founding expressly constrained state legislative action under the Elections Clause. See Del. Const., Art. VIII, §2 (1792); Md. Const., Art. XIV (1810). In addition, multiple state constitutions at the time of the founding regulated the “manner” of federal elections by requiring that “elections shall be by ballot.” See, e.g., Ga. Const., Art. IV, §2. Moreover, the Articles of Confederation—from which the Framers borrowed—provided that “delegates shall be annually appointed in such manner as the legislature of each state shall direct.” Art. V. Around the time the Articles were adopted, multiple States regulated the appointment of delegates, suggesting that the Framers did not understand that language to insulate state legislative action from state constitutional provisions. See, e.g., Del. Const., Art. XI (1776). Pp. 24–26.

 3. Although the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, federal courts must not abandon their duty to exercise judicial review. This Court has an obligation to ensure that state court interpretations of state law do not evade federal law. For example, States “may not sidestep the Takings Clause by disavowing traditional property interests.” Phillips v. Washington Legal Foundation, 524 U. S. 156, 167. While the Court does not adopt a test by which state court interpretations of state law can be measured in cases implicating the Elections Clause, state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.

 The Court need not decide whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause, as petitioners did not meaningfully present the issue in this Court. Pp. 26–29.

380 N. C. 317, 868 S. E. 2d 499, affirmed.

 Roberts, C. J., delivered the opinion of the Court, in which Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, JJ., joined. Kavanaugh, J., filed a concurring opinion. Thomas, J., filed a dissenting opinion in which Gorsuch, J., joined, and in which Alito, J., joined as to Part I.


MALLORY v. NORFOLK SOUTHERN RAILWAY CO.

Certiorari To The Supreme Court Of Pennsylvania, Eastern District

No. 21–1168. Argued November 8, 2022—Decided June 27, 2023

Robert Mallory worked for Norfolk Southern as a freight-car mechanic for nearly 20 years, first in Ohio, then in Virginia. After he left the company, Mr. Mallory moved to Pennsylvania for a period before returning to Virginia. Along the way he was diagnosed with cancer. Because he attributed his illness to his work at Norfolk Southern, Mr. Mallory sued his former employer under the Federal Employers’ Liability Act, 45 U. S. C. §§51–60, a federal workers’ compensation scheme permitting railroad employees to recover damages for their employers’ negligence. Mr. Mallory filed his lawsuit in Pennsylvania state court. Norfolk Southern—a company incorporated in Virginia and headquartered there—resisted the suit on the basis that a Pennsylvania court’s exercise of personal jurisdiction over it would offend the Due Process Clause of the Fourteenth Amendment. Norfolk Southern noted that when the complaint was filed, Mr. Mallory resided in Virginia, and the complaint alleged that Mr. Mallory was exposed to carcinogens only in Ohio and Virginia. Mr. Mallory pointed to Norfolk Southern’s presence in Pennsylvania, noting that Norfolk Southern manages over 2,000 miles of track, operates 11 rail yards, and runs 3 locomotive repair shops in Pennsylvania. In fact, Norfolk Southern has registered to do business in Pennsylvania in light of its “ ‘regular, systematic, [and] extensive’ ” operations there. 266 A. 3d 542, 562; see 15 Pa. Cons. Stat. §411(a). And Pennsylvania requires out-of-state companies that register to do business in the Commonwealth to agree to appear in its courts on “any cause of action” against them. 42 Pa. Cons. Stat. §5301(a)(2)(i), (b). By complying with this statutory scheme, Mr. Mallory submitted, Norfolk Southern had consented to suit in Pennsylvania on claims just like his.

   The Pennsylvania Supreme Court sided with Norfolk Southern. That court found that the Pennsylvania law—requiring an out-of-state firm to answer in the Commonwealth any suits against it in exchange for status as a registered foreign corporation and the benefits that entails—violates the Due Process Clause.

Held: The judgment is vacated, and the case remanded. This case is controlled by Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U. S. 93. Much like the Missouri law that the Court in Pennsylvania Fire found to comport with the Due Process Clause, the Pennsylvania law at issue here provides that an out-of-state corporation “may not do business in this Commonwealth until it registers with” the Department of State. 15 Pa. Cons. Stat. §411(a). Among other things, Pennsylvania law is explicit that “qualification as a foreign corporation” shall permit state courts to “exercise general personal jurisdiction” over a registered foreign corporation, just as they can over domestic corporations. 42 Pa. Cons. Stat. §5301(a)(2). Norfolk Southern has complied with this law since 1998, when it registered to do business in Pennsylvania. Norfolk Southern applied for a “Certificate of Authority” from the Commonwealth which, once approved, conferred on Norfolk Southern both the benefits and burdens shared by domestic corporations, including amenability to suit in state court on any claim. For more than two decades, Norfolk Southern has agreed to be found in Pennsylvania and answer any suit there.

  Pennsylvania Fire held that suits premised on these grounds do not deny a defendant due process of law. Mr. Mallory no longer lives in Pennsylvania and his cause of action did not accrue there. But none of that makes any difference. To decide this case, the Court need not speculate whether any other statutory scheme and set of facts would suffice to establish consent to suit. It is enough to acknowledge that the state law and facts before the Court fall squarely within Pennsylvania Fire’s rule.

  In the proceedings below, the Pennsylvania Supreme Court seemed to recognize that Pennsylvania Fire dictated an answer in Mr. Mallory’s favor but ruled for Norfolk Southern because, in its view, intervening decisions from this Court had “implicitly overruled” Pennsylvania Fire. See 266 A. 3d, at 559, 567. That was error. As this Court has explained: “If a precedent of this Court has direct application in a case,” as Pennsylvania Fire does here, a lower court “should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484. This is true even if the lower court thinks the precedent is in tension with “some other line of decisions.” Ibid. Pp. 10–12.

266 A. 3d 542, vacated and remanded.

 Gorsuch, J., announced the judgment of the Court, delivered the opinion of the Court with respect to Parts I and III–B, in which Thomas, Alito, Sotomayor, and Jackson, JJ., joined, and an opinion with respect to Parts II, III–A, and IV, in which Thomas, Sotomayor, and Jackson, JJ., joined. Jackson, J., filed a concurring opinion. Alito, J., filed an opinion concurring in part and concurring in the judgment. Barrett, J., filed a dissenting opinion, in which Roberts, C. J., and Kagan and Kavanaugh, JJ., joined.