Counterman’s Recklessness Requirement Does Not Apply to Content‑Neutral Stalking: Colorado Supreme Court Clarifies § 18‑3‑602(1)(c) in People v. Crawford (2025)

Introduction

In People v. Crawford, 2025 CO 22, 568 P.3d 426, the Colorado Supreme Court resolved a recurring question in the wake of the U.S. Supreme Court’s decision in Counterman v. Colorado, 600 U.S. 66 (2023): when, if ever, does Counterman’s First Amendment-based requirement of a subjective mens rea (at least recklessness) apply to Colorado stalking prosecutions under section 18‑3‑602(1)(c)? The district court had extended Counterman beyond its “true threats” context, holding that the State must prove the defendant recklessly disregarded the risk that his repeated contacts would cause serious emotional distress—even though the State expressly disclaimed reliance on the content of any communication and sought to proceed on a course-of-conduct theory.

Writing for a unanimous court, Justice Hart granted extraordinary relief under C.A.R. 21, reversed the district court, and drew a bright doctrinal line: Counterman’s recklessness requirement governs prosecutions that turn on the threatening content of speech; it does not govern content-neutral stalking prosecutions premised on the fact, frequency, and manner of repeated contacts, approaches, surveillance, or following. In doing so, the Court harmonized Colorado practice with several in-state appellate decisions and persuasive authorities from other jurisdictions, and it clarified that the mere evidentiary use of communications to prove that contacts occurred does not trigger First Amendment protections.

Summary of the Opinion

Procedural Posture: Original C.A.R. 21 proceeding arising from the Jefferson County District Court’s order expanding Counterman to require proof of recklessness in a content-neutral stalking prosecution.
Issue: Whether Counterman’s First Amendment-based mens rea requirement applies to stalking charges under § 18‑3‑602(1)(c) where the State relies on repeated contacts and other conduct, and not on threatening content.
Holding: Counterman does not apply. When a stalking prosecution is based on repeated conduct—including contacts and communications where the content is not the basis of criminal liability—no constitutional overlay of recklessness is required.
Reasoning in Brief: Counterman addressed content-based “true threats,” a narrow category of unprotected speech. Content-neutral, course-of-conduct stalking implicates different First Amendment considerations, often none at all. The mere evidentiary use of communications to show repeated contact does not convert a prosecution into a content-based speech case. Intermediate scrutiny is inapplicable where, as here, the statute is applied to non-expressive conduct. The Court also flagged a misleading model jury instruction comment and clarified its proper scope.
Disposition: Order to show cause made absolute; district court’s order expanding Counterman reversed; case remanded for further proceedings consistent with the opinion.

Factual and Procedural Background

The defendant, David Samuel Crawford, and the victim, A.L., ended a years-long relationship in 2018. Despite A.L.’s repeated demands and police warnings to stop, Crawford engaged in a multi-year pattern of unwelcome conduct: calling, emailing, texting, messaging on social media, contacting A.L.’s friends and family, surveilling her online to locate her, sending letters and gifts to her workplace, appearing at her home uninvited, and ultimately peering through her windows, leading to his arrest in 2023.

The State charged two counts of stalking under § 18‑3‑602(1)(c), explicitly limiting its theory to repeated conduct and the fact of repeated contacts (including communications) while disclaiming any reliance on the content of those communications. Relying on Counterman, the district court nevertheless required the State to prove that Crawford recklessly disregarded the risk that his repeated contacts would cause A.L. serious emotional distress. The People sought C.A.R. 21 relief. The Supreme Court granted review, noting the issue’s public importance, conflict in lower court rulings, and the inadequacy of an appellate remedy given double jeopardy risk if the defendant were acquitted.

Detailed Analysis

1) Precedents and Authorities Cited and Their Influence

Counterman v. Colorado, 600 U.S. 66 (2023): The U.S. Supreme Court held that in prosecutions targeting the content of “true threats,” the First Amendment requires proof that the defendant had at least a reckless understanding of the threatening nature of his statements. Crawford clarifies that Counterman’s recklessness overlay is tethered to content-based prosecutions focused on threatening speech—not to content-neutral, course-of-conduct stalking.
Virginia v. Black, 538 U.S. 343 (2003): Provides the canonical definition of “true threats” as serious expressions of intent to commit unlawful violence. Crawford relies on Black to reaffirm that Counterman’s rule is confined to this content-based category.
Voisine v. United States, 579 U.S. 686 (2016): Discusses recklessness as conscious disregard of a substantial and unjustifiable risk. Counterman imported this recklessness standard for true-threats prosecutions; Crawford emphasizes that importation does not extend to content-neutral stalking.
Texas v. Johnson, 491 U.S. 397 (1989), and Spence v. Washington, 418 U.S. 405 (1974): Establish the expressive conduct test. Crawford uses these to underscore that conduct must be “sufficiently imbued with elements of communication” to trigger First Amendment protection. Crawford did not satisfy this threshold.
Ward v. Rock Against Racism, 491 U.S. 781 (1989): Articulates intermediate scrutiny for content-neutral time, place, and manner restrictions on expressive conduct. Crawford explains that intermediate scrutiny is inapplicable here because the statute, as applied, regulates non-expressive conduct and because content-neutral stalking implicates fewer First Amendment concerns.
Rowan v. U.S. Post Office Department, 397 U.S. 728 (1970): Recognizes the government’s greater leeway to protect unwilling recipients from intrusive communications. The Crawford court cites Rowan (through Justice Sotomayor’s Counterman concurrence) to explain why repeated, intrusive, direct contacts to an unwilling recipient enjoy reduced First Amendment protection even when communications are involved.
Colorado authorities on original jurisdiction: People v. Howell, 2024 CO 42; Hagan v. Farmers Ins. Exch., 2015 CO 6; People v. Ellison, 14 P.3d 1034 (Colo. 2000); Kulmann v. Salazar, 2022 CO 58. These support the Court’s use of C.A.R. 21 to resolve a first-impression issue of significant public importance and to avoid irreparable harm to the State from double jeopardy.
Colorado post-Counterman decisions: People v. Morris, 2025 COA 15; People v. Trujillo, 2025 COA 22; and district court orders (Sharpe; Spiers). Crawford aligns with these decisions by limiting Counterman to content-based prosecutions premised on threatening speech.
Persuasive state authorities: State v. Labbe, 314 A.3d 162 (Me. 2023), and Corrigan v. State, 2024 WL 3493348 (Minn. Ct. App. July 22, 2024) (unpublished). Both reject applying Counterman’s recklessness requirement to stalking convictions based on conduct rather than threatening content; Colorado adopts this approach.

2) The Court’s Legal Reasoning

a) The conduct/content distinction. The core of the Court’s reasoning is categorical: Counterman is a First Amendment decision addressing a content-based carve-out—true threats—where the risk of chilling protected speech warranted a subjective mens rea. By contrast, § 18‑3‑602(1)(c) is frequently enforced against patterns of behavior that need not involve threatening content at all. Where the prosecution targets the fact of repeated contacts, approaches, following, or surveillance—rather than the expressive content of speech—the First Amendment concerns that animated Counterman are absent.

b) Expressive conduct threshold not met. Although the First Amendment can sometimes protect conduct “sufficiently imbued” with communication (Johnson/Spence), the defendant bears the burden to show that conduct is expressive. Crawford did not do so. The alleged acts—repeatedly appearing uninvited at the victim’s home, peering through windows, and persisting in unwanted communications—are not the sort of symbolic conduct addressed in Johnson and Spence.

c) Using communications as evidence does not transform the case. The district court believed that introducing texts, calls, and emails as evidence necessarily invoked Counterman. The Supreme Court rejected this conflation. There is a constitutionally meaningful difference between using communications to prove the fact of repeated contact (a statutory element) and prosecuting the content of those communications as threatening speech. The former does not trigger Counterman; the latter does.

d) Intermediate scrutiny is inapplicable. The district court reasoned that, at minimum, a content-neutral regulation of speech should be judged under intermediate scrutiny and should entail a recklessness mens rea. Crawford rejects both points. Intermediate scrutiny evaluates the constitutionality of content-neutral regulations of expressive conduct. Here, the as-applied enforcement targets non-expressive conduct and the mere fact of repeated contacts; even if some expressive activity is swept in, content-neutral stalking “raise[s] even fewer First Amendment concerns” and “enjoys less protection” than prosecutions of threatening content. There is no constitutional basis to graft a recklessness requirement onto § 18‑3‑602(1)(c) in such cases.

e) Clarifying model jury instructions. The Court identified a problematic reading of Colorado’s model jury instruction comment (COLJI-Crim. 3‑6:04.5.SP cmt. 1 (2023)) that could be understood to require a Counterman recklessness instruction in any stalking case “involving communications.” The Court corrected that understanding: the special instruction is appropriate only when the State relies, in whole or in part, on the threatening content of a defendant’s communications. It is not required when the prosecution proceeds on a content-neutral, course-of-conduct theory.

f) Legislative findings support the course-of-conduct focus. The Court invoked § 18‑3‑601(1)(e)–(f), recognizing that stalking involves “highly inappropriate intensity, persistence, and possessiveness,” and that repeated unwanted contacts severely intrude upon a victim’s privacy and autonomy, causing serious and lasting distress even absent explicit threats. These findings reinforce the constitutionality and importance of enforcing § 18‑3‑602(1)(c) against repeated conduct.

3) Impact and Implications

a) Immediate effect on Colorado prosecutions. Prosecutors may proceed under § 18‑3‑602(1)(c) on a course-of-conduct theory without proving Counterman recklessness, provided they do not rely on threatening content as the basis for criminal liability. The State can use communications as evidence of contact—number, timing, persistence—without converting the case into a content-based prosecution.

b) Charging and evidentiary practice. The opinion incentivizes careful charging decisions and evidentiary management:

Clearly disavow reliance on content where the theory is repeated contact, approach, following, or surveillance.
Offer communications primarily to prove that contacts occurred (e.g., timestamps, call logs, metadata) and to contextualize the pattern, not to demonstrate threatening content.
Use limiting instructions to prevent jurors from treating content as the basis for guilt, where content is incidentally revealed.

c) Defense strategy. Defendants will likely press for Counterman instructions when the State’s proof necessarily relies on content to establish either the course of conduct or the harm element (serious emotional distress). They may also argue that particular conduct is expressive under the Johnson/Spence test. Crawford places the burden on defendants to establish that threshold.

d) Model jury instructions. Expect revisions to the model instruction comments to align with Crawford’s clarification: a Counterman recklessness instruction is warranted only when the prosecution’s theory turns on threatening content, not merely when communications are present in the evidentiary record.

e) Victims and public safety. The decision underscores that Colorado’s stalking statute robustly protects victims from patterns of intrusive conduct that cause serious emotional distress, even where there are no explicit threats in the communications. It reduces the risk that content-neutral enforcement will be hampered by a misapplied constitutional mens rea.

f) Harmonization with other jurisdictions. Colorado’s approach now aligns with the Supreme Judicial Court of Maine (Labbe) and Minnesota’s Court of Appeals (Corrigan), which also cabin Counterman to cases premised on threatening content.

g) Open questions and lines to watch. Crawford does not define a new statutory mens rea for § 18‑3‑602(1)(c); it merely declines to impose a First Amendment recklessness overlay where content is not at issue. Future cases may explore:

When the State’s reliance on the content of communications to prove the “serious emotional distress” element crosses the line into content-based prosecution requiring Counterman recklessness.
How trial courts should manage redactions and limiting instructions when content is intertwined with the proof of contact or context.
Whether, in closer cases, certain conduct (e.g., highly symbolic picketing directed at a former partner) is “sufficiently imbued” with communication to trigger expressive-conduct analysis.

Complex Concepts Simplified

True threats: Statements that a reasonable listener would understand as a serious expression of intent to commit unlawful violence. Prosecutions based on the threatening content of such speech require proof that the speaker at least recklessly understood the threatening nature of their words (Counterman).
Content-based vs. content-neutral: Content-based laws or prosecutions target the message itself (e.g., threatening words). Content-neutral enforcement targets conduct regardless of what is said (e.g., the fact of repeated contact).
Expressive conduct: Nonverbal conduct protected by the First Amendment only if intended to convey a particularized message and likely to be understood as such by observers (Johnson/Spence). Not all conduct is expressive.
Recklessness (criminal mens rea): Conscious disregard of a substantial and unjustifiable risk (Voisine). Counterman imports this state of mind only for prosecutions based on threatening content.
Intermediate scrutiny: A test for content-neutral regulations of expressive conduct; asks whether the regulation serves a substantial government interest and does not burden substantially more speech than necessary (Ward). In Crawford, intermediate scrutiny does not apply because the statute is enforced against non-expressive conduct.
Course of conduct stalking (§ 18‑3‑602(1)(c)): Repeatedly following, approaching, contacting, surveilling, or communicating in a manner that would cause a reasonable person to suffer serious emotional distress and does cause such distress. Liability can rest on conduct alone, without proof of threatening content.
Chilling effect: The risk that laws targeting speech deter people from engaging in protected expression. Counterman’s recklessness requirement aims to mitigate this risk in content-based prosecutions; that concern is diminished in content-neutral, course-of-conduct cases.

Conclusion

People v. Crawford establishes an important and practical boundary in Colorado’s post-Counterman landscape. The Colorado Supreme Court holds that Counterman’s subjective recklessness requirement applies only when the State prosecutes the content of speech as a “true threat.” When the State proceeds under § 18‑3‑602(1)(c) on a content-neutral, course-of-conduct theory—repeated contacts, approaches, surveillance, or following—the First Amendment does not require proof of recklessness. The mere use of communications as evidence of contact does not transform the case into a content-based prosecution.

The decision aligns Colorado with persuasive authority from other states, resolves conflicting interpretations within Colorado’s lower courts, and provides immediate guidance for charging, evidentiary practice, and jury instructions. It also vindicates legislative findings that stalking’s persistent intrusions severely burden victims’ autonomy and mental health even absent explicit threats. Going forward, the key doctrinal inquiry will be whether the State relies on the content of communications to prove liability; if so, Counterman recklessness applies. If not, Crawford controls, and a constitutional recklessness overlay is unnecessary.