Attorney reviewed by Mark Blair, a Washington criminal defense attorney and co-founder of Blair Kim Moeller, PLLC. Last updated October 19, 2026.
A threat prosecution in Washington now turns on the speaker's own awareness, not only on how the words would strike a reasonable listener. The United States Supreme Court tightened the standard for a "true threat" in 2023, the Washington Supreme Court applied it to the felony harassment statute in March 2026, and on September 9, 2026 Division Two decided what the change meant for the defendant in that same case.
Under the current rule, the State must prove the speaker acted at least recklessly, meaning the speaker was actually aware that others could regard the statements as threatening violence and made them anyway. In State v. Calloway, the jury was instructed under Washington's older, objective standard. The Washington Supreme Court held that instruction erroneous and returned the case to Division Two, which held in an unpublished decision that the error was harmless and affirmed the conviction.
What a True Threat Is After Counterman
A true threat is a statement made while the speaker is actually aware that others could regard it as a serious expression of intent to commit violence. In Counterman v. Colorado, the Supreme Court held that the First Amendment does not permit a threat conviction based only on the objective impression the words create. The State must prove at least recklessness about how they would be understood.
Washington applies the true-threat requirement through its harassment statute, RCW 9A.46.020. Felony harassment includes knowingly threatening to kill another person where the words or conduct place that person in reasonable fear the threat will be carried out. Counterman changed the mental state the State must prove about the threat itself. It did not change the other elements.
The criminal defense attorneys at Blair Kim Moeller follow this issue closely in harassment cases across King and Snohomish Counties, because the jury instruction on a threat must now include a mental-state element it did not require a few years ago.
The Statute Survives, but the Old Instruction Does Not
Calloway reached the Washington Supreme Court first. In March 2026, that court rejected the argument that Counterman made the felony harassment statute unconstitutional, as we discussed at the time. The statute remains valid. The court agreed, however, that the jury instruction was erroneous because it allowed a conviction without a finding that the defendant acted recklessly as to how his words would be understood.
The practical consequence is that trial courts must now instruct juries on the reckless-awareness standard rather than the purely objective test, and cases tried under the older instruction may be open to challenge.
If you are facing a threat or harassment charge, the mental-state question is one of the first issues worth examining.
Why the Conviction Was Affirmed on Remand
An erroneous instruction on a constitutional element is still subject to harmless-error review. The question is whether the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same verdict under a correct instruction. In Calloway, the defendant spent a day in escalating phone calls with a former friend, repeatedly told her he was going to kill her, repeated the threat to a sheriff's deputy who answered her phone, and then drove past her home. On those facts, Division Two concluded that any reasonable jury would have found the recklessness standard met.
The decision does not diminish the new standard. It shows that the standard matters most where a statement is ambiguous, offhand, or made in circumstances that leave real doubt about whether the speaker understood how it would be received. Where the words and the setting remove that doubt, the recklessness element is readily proved and an instructional error is likely to be harmless.
Context therefore carries real weight. Intoxication, a remark intended as a joke, words vented to a third party rather than directed at the target, and statements made in a medium where tone is easily lost all bear on whether the speaker was actually aware the words could be taken as a threat. That awareness is now an element the State must prove, rather than a conclusion drawn from how a reasonable person would hear the words.
For anyone charged with felony harassment or a related threat offense, the key questions are what the jury was told, whether the instruction included the reckless-awareness element, and how strong the State's evidence of the speaker's own awareness is. These charges frequently carry a domestic violence designation, which raises the stakes without changing what the State must prove about the threat.
