The appeals court heard argument in Commonwealth v. Wilfredo Santiago on Jan. 5, where the appellant contended that recent First Amendment precedents require a subjective mens rea for threats and that the evidence in this case was insufficient to show an immediate threat.

Daniel Wood, arguing for Wilfredo Santiago, urged reversal on the ground that Counterman (and Massachusetts' interpreting case Cruz) require a recklessness standard for criminalizing threatening speech and that the trial's jury instructions and record did not adequately establish the required mens rea. Wood emphasized factual distinctions from published cases (Buttimer, Delgado, Geraci) where video or overt acts made imminency clear and argued that here the record lacked witnesses or corroborating evidence to show an immediate-threat inference.

Assistant District Attorney Matthew Padilano told the court the evidence satisfied Counterman standards because the factfinder also convicted Santiago of assault with a dangerous weapon, indicating the jury found sufficient intent; Padilano argued showing the gun and saying "this gun is for you" created a reasonable inference of imminent fear, and that operability is judged by whether the victim reasonably believed the firearm could function.

Justices questioned what "immediate" means in practice and whether a jury could reasonably infer an immediate fear from the combination of gesture and words; counsel debated whether future, non-immediate threats are distinguishable and how these distinctions intersect with Counterman mens rea principles. The panel submitted the case after argument; no disposition was announced from the bench.