Washington Felony Harassment After Counterman: RCW 9A.46.020 Survives Facial Challenge, but “True Threat” Instructions Must Require at Least Recklessness (Harmlessness Assessed Under Magaña-Arévalo)

Case: State v. Calloway, No. 103374-5 (Wash. Mar. 19, 2026) (en banc)
Court: Supreme Court of Washington
Author: Madsen, J. (majority); Gordon McCloud, J. (concurring)

1. Introduction

State v. Calloway sits at the intersection of Washington’s felony-harassment statute and the First Amendment “true threat” doctrine. Turner Lee Calloway was convicted of felony harassment under RCW 9A.46.020 based on alleged threats to kill a longtime friend, A.D., delivered during repeated calls and voicemails on October 31, 2021. A deputy also testified that he heard Calloway say he was outside A.D.’s house and was going to kill her.

While Calloway’s appeal was pending, the United States Supreme Court decided Counterman v. Colorado, 600 U.S. 66, 82, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023), holding that the First Amendment requires the prosecution to prove at least recklessness as to whether the communication would be viewed as threatening violence. Calloway then raised two connected claims:

• Facial challenge: RCW 9A.46.020 is unconstitutional because Washington precedent had used a negligence-based “true threat” standard.
• Instructional error: the jury’s “true threat” instruction used negligence (reasonable speaker foreseeability), not recklessness, and the State could not show harmlessness beyond a reasonable doubt given disputed evidence.

The Washington Supreme Court’s decision addresses (1) whether the statute can survive a facial First Amendment challenge after Counterman, and (2) what happens to convictions obtained under pre-Counterman “true threat” instructions.

2. Summary of the Opinion

Concurrence (Gordon McCloud, J.): agrees the statute is not facially unconstitutional and agrees the conviction must be revisited due to erroneous instructions, but disputes the majority’s rationale. The concurrence contends Counterman changed an element of Washington felony harassment by overruling the negligence line of cases (e.g., State v. Schaler, 169 Wn.2d 274, 287, 236 P.3d 858 (2010)). It proposes saving the statute through interpretation: read the statute’s “knowingly” mens rea to apply throughout RCW 9A.46.020 (including the “true threat” component), drawing on constitutional-avoidance approaches such as United States v. X-Citement Video, Inc., 513 U.S. 64, 70-71, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994).

3. Analysis

3.1. Precedents Cited

A. Facial challenges and constitutional avoidance

• State v. Reynolds, 2 Wn.3d 195, 201, 535 P.3d 427 (2023) — de novo review of constitutionality.
• Gerberding v. Munro, 134 Wn.2d 188, 196, 949 P.2d 1366 (1998) — statute presumed constitutional; challenger bears burden. (The concurrence later contextualizes that “beyond a reasonable doubt” formulation with Quinn v. State, 1 Wn.3d 453, 471 n.9, 526 P.3d 1 (2023), and related cases.)
• State v. Hunley, 175 Wn.2d 901, 916, 287 P.3d 584 (2012) (quoting City of Redmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875 (2004)) — a facial challenge succeeds only if “no set of circumstances exists” where the statute can be constitutionally applied; otherwise it is not “rendered totally inoperative.”
• ZDI Gaming, Inc. v. State ex rel. Wash. State Gambling Comm'n, 173 Wn.2d 608, 619, 268 P.3d 929 (2012), and Utter ex rel. State v. Bldg. Indus. Ass'n of Wash., 182 Wn.2d 398, 434, 341 P.3d 953 (2015) — courts construe statutes to avoid constitutional doubt.

B. The “true threat” doctrine in Washington (pre-Counterman)

• State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004) (quoting State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001)) — Washington’s objective “reasonable person” foreseeability framing of a “true threat.”
• State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010) — applied the objective approach to the threats-to-kill provision of RCW 9A.46.020; discussed in the majority as Washington’s “at least negligent” framework.
• State v. Trey M., 186 Wn.2d 884, 892-93, 902-04, 383 P.3d 474 (2016), and Williams, 144 Wn.2d at 207-08 — continued use of the objective standard.
• State v. Allen, 176 Wn.2d 611, 628, 294 P.3d 679 (2013) (plurality opinion) — noted the court had “never held the true threat requirement to be an essential element of a harassment statute,” but Washington still used “true threat” limiting instructions to protect speech.
• State v. J.M., 144 Wn.2d 472, 478, 28 P.3d 720 (2001) — government interest in protecting against fear, disruption, and threatened violence (quoted via Kilburn).
• State v. Johnston, 156 Wn.2d 355, 363-64, 127 P.3d 707 (2006), and State v. Tellez, 141 Wn. App. 479, 483-84, 170 P.3d 75 (2007) — limiting instructions can save statutes from overbreadth in speech-adjacent prosecutions.

C. First Amendment baseline and content discrimination

• Police Dep't of Chi. v. Mosley, 408 U.S. 92, 95, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972) — government generally cannot punish speech based on content, subject matter, or ideas, with limited exceptions (including “true threats”).

D. Counterman and the required mens rea

• Counterman v. Colorado, 600 U.S. 66, 69, 75, 79-83 (2023) — the First Amendment requires proof the defendant “consciously disregarded a substantial risk” that the communication would be viewed as threatening violence (recklessness minimum).
• Elonis v. United States, 575 U.S. 723, 746, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015) (Alito, J., concurring in part and dissenting in part) — quoted by Counterman to articulate recklessness in threat context; quoted by the majority for the “aware… and delivers them anyway” formulation.
• The opinion also references People v. Kvasnicka (multiple procedural stages) as limited persuasive authority in other jurisdictions’ post-Counterman grappling with mens rea and statutory construction.

E. Harmless constitutional error

• State v. Coristine, 177 Wn.2d 370, 380, 300 P.3d 400 (2013) — State bears burden to prove constitutional error harmless beyond a reasonable doubt.
• Neder v. United States, 527 U.S. 1, 15-16, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) — not every instructional error requires reversal.
• Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986), and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) — harmless-beyond-a-reasonable-doubt standard and its rationale.
• State v. Brown, 147 Wn.2d 330, 338, 341, 58 P.3d 889 (2002) — misstatement/omission can be harmless if the element is supported by uncontroverted evidence.
• State v. Berube, 150 Wn.2d 498, 505 n.2, 79 P.3d 1144 (2003) — even where evidence is controverted, reviewing court may find harmlessness if convinced verdict would be the same after thorough review.
• State v. Magaña-Arévalo, No. 103586-1, slip op. at 4 (Wash. Jan. 15, 2026) — newly clarified test requiring courts to consider both strength of the evidence and prejudicial impact of the error; drives the remand in this case.
• Schaler, 169 Wn.2d at 288 — error not harmless where record/instructions leave ambiguity whether jury convicted on improper grounds.

F. The concurrence’s statutory-construction toolkit

• O'Day v. King County, 109 Wn.2d 796, 807, 749 P.2d 142 (1988) — legislative acquiescence doctrine (once court construes a statute, that construction becomes part of it).
• United States v. X-Citement Video, Inc., 513 U.S. 64, 70-71 (1994); Morissette v. United States, 342 U.S. 246, 271 (1952); Liparota v. United States, 471 U.S. 419, 424 n.6, 426 (1985) — applying a mens rea term to later statutory elements to avoid criminalizing constitutionally sensitive or innocent conduct.
• The concurrence also quotes New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964), and Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), and references Virginia v. Black, 538 U.S. 343, 359 (2003), and United States v. Alvarez, 567 U.S. 709, 717-18 (2012) (plurality opinion), as analogies for speech doctrines requiring a culpable mental state to avoid chilling protected expression.

3.2. Legal Reasoning

A. Why the facial challenge fails (majority’s route)

The majority frames the facial challenge under Hunley/Moore: Calloway must show there is no constitutional application of RCW 9A.46.020. Despite Washington’s history of negligence-oriented “true threat” instructions (e.g., Schaler), the majority focuses on the statute’s text and operative effect: the statute requires proof the defendant “knowingly threatens” certain harm, and nothing in the statute requires the State to proceed on mere negligence for the “true threat” boundary that the First Amendment imposes.

In other words, the majority separates:

• Statutory elements (e.g., “knowingly threatens,” fear, threat-to-kill enhancement), from
• Constitutional limiting doctrine (the “true threat” screen, now with a minimum mens rea of recklessness under Counterman).

Because trial courts can apply RCW 9A.46.020 with a Counterman-compliant “true threat” instruction, the statute is not “totally inoperative” and is therefore facially valid. Consistent with Johnston and Allen, the majority treats a limiting instruction as the mechanism that keeps prosecutions within constitutional bounds.

B. Why the instruction was unconstitutional (and why that matters)

The majority identifies a direct mismatch between the trial instruction and Counterman. The instruction told jurors that a “threat” exists if “a reasonable person, in the position of the speaker, would foresee” the statement would be interpreted as a serious expression of intent—an objective foreseeability test tantamount to negligence.

Counterman, by contrast, requires proof that the defendant acted with at least recklessness—i.e., was aware of a substantial risk the communication would be viewed as threatening violence and proceeded anyway. The majority therefore holds the instruction allowed conviction without the constitutionally required culpable mental state, necessitating harmless-error review.

C. The remand: harmless error must be reassessed under Magaña-Arévalo

The Court of Appeals had held the error harmless based on the “threatening statements” and circumstances. The Washington Supreme Court does not affirm that conclusion. Instead, it remands so the Court of Appeals can apply the clarified harmless-error framework from State v. Magaña-Arévalo, which demands attention to:

• the strength of the evidence of guilt, and
• the prejudicial impact of the erroneous instruction,

while maintaining the State’s burden to prove harmlessness beyond a reasonable doubt (Coristine; Chapman; Van Arsdall). This is particularly salient here because evidence about what was said, and by whom, was contested (e.g., no texts/voicemails admitted; conflicting accounts from A.D., Calloway, and the deputies).

D. The concurrence’s competing explanation: Counterman changes an element; the statute should be construed to require “knowledge” throughout

Justice Gordon McCloud agrees the instructions were wrong but disputes the majority’s “no element changed” premise. In the concurrence’s view, Washington’s prior negligence-based line (e.g., Schaler) had effectively supplied an element for threat prosecutions that Counterman invalidates. The concurrence would address that by interpreting RCW 9A.46.020 itself—using constitutional-avoidance techniques—to apply “knowingly” across the statute, including the “true threat” portion, relying on decisions such as United States v. X-Citement Video, Inc.. Because “knowledge” is more culpable than recklessness (and thus meets Counterman’s minimum), this construction would align the statute’s requirements with the First Amendment.

3.3. Impact

• Immediate practical rule for Washington courts: pre-Counterman “true threat” instructions using a negligence-like objective standard are constitutionally suspect in felony-harassment prosecutions under RCW 9A.46.020. Trial courts must ensure jurors are instructed that the State must prove at least recklessness as to the threatening character of the communication.
• Appellate posture shifts: cases affirmed on harmless-error grounds may require closer scrutiny post-Magaña-Arévalo. The remand in Calloway signals that “harmless beyond a reasonable doubt” is not satisfied merely by pointing to inflammatory language; courts must engage the full record, the dispute posture, and how the faulty instruction might have mattered.
• Statute preserved, litigation moved to instructions and proof: by rejecting a facial invalidation, the court keeps RCW 9A.46.020 operational. The battleground becomes whether the State proved the defendant’s constitutionally required mental state (recklessness or higher), and whether juries were properly instructed.
• Doctrinal tension left open: the majority and concurrence diverge on whether Counterman merely affects constitutional limiting instructions or also compels rethinking Washington precedent’s interpretation of the statute’s mens rea. That disagreement may shape future briefing on whether cases like State v. Schaler remain good law and how “knowingly threatens” should be read.

4. Complex Concepts Simplified

• “True threat”: a category of communications that may be punished because of the harms of fear and disruption, but only within constitutional limits. After Counterman v. Colorado, the First Amendment requires proof of a culpable mental state (at least recklessness) before the government may criminally punish the speech.
• Mens rea (mental state):
  • Negligence: you should have known the risk.
  • Recklessness: you actually recognized a substantial risk and disregarded it.
  • Knowledge: you were aware what you were doing (a higher culpability than recklessness).
  Counterman sets recklessness as the constitutional floor for true-threat prosecutions.
• Facial challenge: an argument that a law is invalid in all its applications. Under State v. Hunley and City of Redmond v. Moore, that is a high bar: if the law can be applied constitutionally in any set of circumstances, the facial challenge fails.
• Limiting instruction: a jury instruction that narrows a statute’s reach to avoid punishing protected speech (see State v. Johnston; State v. Allen). Here, the “true threat” instruction is the key limiter—but it must now reflect recklessness, not negligence.
• Harmless error: even if an instruction was unconstitutional, a conviction can stand if the State proves beyond a reasonable doubt the error did not affect the verdict (Chapman v. California). State v. Magaña-Arévalo emphasizes examining both the strength of the evidence and the likely effect of the error.

5. Conclusion

State v. Calloway establishes a clear post-Counterman rule for Washington felony-harassment prosecutions: RCW 9A.46.020 remains facially constitutional, but convictions cannot rest on “true threat” instructions that require only negligence. When a jury is told it may convict based on an objective “reasonable speaker would foresee” standard, the resulting constitutional error triggers strict harmless-error review—now to be applied through the framework clarified in State v. Magaña-Arévalo.

The decision’s broader significance is structural: it preserves Washington’s harassment statute while forcing doctrinal alignment between Washington’s historically objective “true threat” approach (e.g., Kilburn, Williams, Schaler) and the First Amendment’s modern mens rea requirement articulated in Counterman v. Colorado. Whether future courts adopt the majority’s “instructional fix” model or the concurrence’s “statutory reinterpretation” model, the bottom line is the same—Washington juries must now be required to find at least recklessness regarding the threatening nature of the communication before speech can be criminally punished as a true threat.