In Counterman v. Colorado, 600 U.S. 66, 73 (2023), the Court clarified that, to comply with the First Amendment's protections, prosecutors "must prove in true threats cases that the defendant had some understanding of his statements' threatening character." Since then, almost all courts have rejected defendants' facial overbreadth challenges based on Counterman's true-threat doctrine, instead considering as-applied challenges to specific prosecutions and specific threats. The Ninth Circuit has, alone, taken the opposite tack. It has continued to reject as-applied challenges, instead requiring defendants to bring facial challenges under Counterman.

The question presented is: To state a claim under the First Amendment's true-threat doctrine, must a criminal defendant bring a facial challenge to the statute with which he is charged?

Must a criminal defendant bring a facial challenge to a statute under the First Amendment's true-threat doctrine?