NOTICE: This opinion is subject to
formal revision before publication in the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–138

															_________________

															BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO

															on writ of certiorari to the court of appeals
of colorado

															[June 27, 2023]

															Justice Kagan delivered the opinion of the
Court.

															True threats of violence are outside the bounds
of First Amendment protection and punishable as crimes. Today we
consider a criminal conviction for communications falling within
that historically unprotected category. The question presented is
whether the First Amendment still requires proof that the defendant
had some subjective understanding of the threatening nature of his
statements. We hold that it does, but that a mental state of
recklessness is sufficient. The State must show that the defendant
consciously disregarded a substantial risk that his communications
would be viewed as threatening violence. The State need not prove
any more demanding form of subjective intent to threaten
another.

															I

															From 2014 to 2016, petitioner Billy Counterman
sent hundreds of Facebook messages to C. W., a local singer and
musician. The two had never met, and C. W. never responded. In
fact, she repeatedly blocked Counterman. But each time, he created
a new Facebook account and resumed his contacts. Some of his
messages were utterly prosaic (“Good morning sweetheart”; “I am
going to the store would you like anything?”)—except that they were
coming from a total stranger. 3 App. 465. Others suggested that
Counterman might be surveilling C. W. He asked “[w]as that you
in the white Jeep?”; referenced “[a] fine display with your
partner”; and noted “a couple [of] physical sightings.” 497 P.3d
1039, 1044 (Colo. App. 2021). And most critically, a number
expressed anger at C. W. and envisaged harm befalling her: “Fuck
off permanently.” Ibid. “Staying in cyber life is going to
kill you.” Ibid. “You’re not being good for human relations.
Die.” Ibid. The messages put C. W. in fear and upended her
daily existence. She believed that Counterman was “threat[ening
her] life”; “was very fearful that he was following” her; and was
“afraid [she] would get hurt.” 2 App. 177, 181, 193. As a result,
she had “a lot of trouble sleeping” and suffered from severe
anxiety. Id. , at 200; see id. , at 194–198. She
stopped walking alone, declined social engagements, and canceled
some of her performances, though doing so caused her financial
strain. See id. , at 182–183, 199, 201–206, 238–239.
Eventually, C. W. decided that she had to contact the
authorities. Id. , at 184.

															Colorado charged Counterman under a statute
making it unlawful to “[r]epeatedly . . . make[ ]
any form of communication with another person” in “a manner that
would cause a reasonable person to suffer serious emotional
distress and does cause that person . . . to suffer
serious emotional distress.” Colo. Rev. Stat. §18–3–602(1)(c)
(2022). The only evidence the State proposed to introduce at trial
were his Facebook messages.[ 1 ]

															Counterman moved to dismiss the charge on First
Amendment grounds, arguing that his messages were not “true
threats” and therefore could not form the basis of a criminal
prosecution. In line with Colorado law, the trial court assessed
the true-threat issue using an “objective ‘reasonable person’
standard.” People v. Cross , 127 P.3d 71 , 76 (Colo. 2006). Under that standard, the State
had to show that a reasonable person would have viewed the Facebook
messages as threatening. By contrast, the State had no need to
prove that Counterman had any kind of “subjective intent to
threaten” C. W. In re R. D. , 464 P.3d 717,
731, n. 21 (Colo. 2020). The court decided, after “consider[ing]
the totality of the circumstances,” that Counterman’s statements
“r[o]se to the level of a true threat.” 497 P. 3d, at 1045. Because
that was so, the court ruled, the First Amendment posed no bar to
prosecution. The court accordingly sent the case to the jury, which
found Counterman guilty as charged.

															The Colorado Court of Appeals affirmed.
Counterman had urged the court to hold that the First Amendment
required the State to show that he was aware of the threatening
nature of his statements. Relying on its precedent, the court
turned the request down: It “decline[d] today to say that a
speaker’s subjective intent to threaten is necessary” under the
First Amendment to procure a conviction for threatening
communications. Id. , at 1046 (quoting R. D. , 464
P. 3d, at 731, n. 21). Using the established objective
standard, the court then approved the trial court’s ruling that
Counterman’s messages were “true threats” and so were not protected
by the First Amendment. 497 P. 3d, at 1050. The Colorado Supreme
Court denied review.

															Courts are divided about (1) whether the First
Amendment requires proof of a defendant’s subjective mindset in
true-threats cases, and (2) if so, what mens rea standard is
sufficient. We therefore granted certiorari. 598 U. S. ___
(2023).

															II

															True threats of violence, everyone agrees, lie
outside the bounds of the First Amendment’s protection. And a
statement can count as such a threat based solely on its objective
content. The first dispute here is about whether the First
Amendment nonetheless demands that the State in a true-threats case
prove that the defendant was aware in some way of the threatening
nature of his communications.[ 2 ] Colorado argues that there is no such requirement.
Counterman contends that there is one, based mainly on the
likelihood that the absence of such a mens rea requirement
will chill protected, non-threatening speech. Counterman’s view, we
decide today, is the more consistent with our precedent. To combat
the kind of chill he references, our decisions have often insisted
on protecting even some historically unprotected speech through the
adoption of a subjective mental-state element. We follow the same
path today, holding that the State must prove in true-threats cases
that the defendant had some understanding of his statements’
threatening character. The second issue here concerns what precise mens rea standard suffices for the First Amendment purpose
at issue. Again guided by our precedent, we hold that a
recklessness standard is enough. Given that a subjective standard
here shields speech not independently entitled to protection—and
indeed posing real dangers—we do not require that the State prove
the defendant had any more specific intent to threaten the
victim.

															A

															“From 1791 to the present,” the First
Amendment has “permitted restrictions upon the content of speech in
a few limited areas.” United States v. Stevens , 559 U.S.
460 , 468 (2010). These “historic and traditional categories”
are “long familiar to the bar” and perhaps, too, the general
public. Ibid. One is incitement—statements “directed [at]
producing imminent lawless action,” and likely to do so. Brandenburg v. Ohio , 395 U.S.
444 , 447 (1969) ( per curiam ). Another is
defamation—false statements of fact harming another’s reputation.
See Gertz v. Robert Welch, Inc. , 418 U.S.
323 , 340, 342 (1974). Still a third is obscenity—valueless
material “appeal[ing] to the prurient interest” and describing
“sexual conduct” in “a patently offensive way.” Miller v. California , 413 U.S.
15 , 24 (1973). This Court has “often described [those]
historically unprotected categories of speech as being of such
slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest” in
their proscription. Stevens , 559 U. S., at 470
(internal quotation marks omitted; emphasis deleted).

															“True threats” of violence is another
historically unprotected category of communications. Virginia v. Black , 538
U.S. 343 , 359 (2003); see United States v. Alvarez , 567 U.S.
709 , 717–718 (2012) (plurality opinion). The “true” in that
term distinguishes what is at issue from jests, “hyperbole,” or
other statements that when taken in context do not convey a real
possibility that violence will follow (say, “I am going to kill you
for showing up late”). Watts v. United States , 394 U.S.
705 , 708 (1969) ( per curiam ). True threats are “serious
expression[s]” conveying that a speaker means to “commit an act of
unlawful violence.” Black , 538 U. S., at 359. Whether
the speaker is aware of, and intends to convey, the threatening
aspect of the message is not part of what makes a statement a
threat, as this Court recently explained. See Elonis v. United States , 575 U.S. 723, 733 (2015). The existence of a
threat depends not on “the mental state of the author,” but on
“what the statement conveys” to the person on the other end. Ibid. When the statement is understood as a true threat, all
the harms that have long made threats unprotected naturally follow.
True threats subject individuals to “fear of violence” and to the
many kinds of “disruption that fear engenders.” Black , 538
U. S., at 360 (internal quotation marks omitted). The facts of
this case well illustrate how.[ 3 ]

															Yet the First Amendment may still demand a
subjective mental-state requirement shielding some true threats
from liability. The reason relates to what is often called a
chilling effect. Prohibitions on speech have the potential to
chill, or deter, speech outside their boundaries. A speaker may be
unsure about the side of a line on which his speech falls. Or he
may worry that the legal system will err, and count speech that is
permissible as instead not. See Philadelphia Newspapers,
Inc. v. Hepps , 475 U.S.
767 , 777 (1986). Or he may simply be concerned about the
expense of becoming entangled in the legal system. The result is
“self-censorship” of speech that could not be proscribed—a
“cautious and restrictive exercise” of First Amendment freedoms. Gertz , 418 U. S., at 340. And an important tool to
prevent that outcome—to stop people from steering “wide[ ] of
the unlawful zone”—is to condition liability on the State’s showing
of a culpable mental state. Speiser v. Randall , 357 U.S.
513 , 526 (1958). Such a requirement comes at a cost: It will
shield some otherwise proscribable (here, threatening) speech
because the State cannot prove what the defendant thought. But the
added element reduces the prospect of chilling fully protected
expression. As this Court has noted, the requirement lessens “the
hazard of self-censorship” by “compensat[ing]” for the law’s
uncertainties. Mishkin v. New York , 383 U.S.
502 , 511 (1966). Or said a bit differently: “[B]y reducing an
honest speaker’s fear that he may accidentally [or erroneously]
incur liability,” a mens rea requirement “provide[s]
‘breathing room’ for more valuable speech.” Alvarez , 567
U. S., at 733 (Breyer, J., concurring in judgment).

															That kind of “strategic protection” features in
our precedent concerning the most prominent categories of
historically unprotected speech. Gertz , 418 U. S., at
342. Defamation is the best known and best theorized example. False
and defamatory statements of fact, we have held, have “no
constitutional value.” Id. , at 340; see Alvarez , 567
U. S., at 718–719 (plurality opinion). Yet a public figure
cannot recover for the injury such a statement causes unless the
speaker acted with “knowledge that it was false or with reckless
disregard of whether it was false or not.” New York Times
Co. v. Sullivan , 376 U.S.
254 , 280 (1964); see Garrison v. Louisiana , 379 U.S.
64 , 74 (1964) (using the same standard for criminal libel).
That rule is based on fear of “self-censorship”—the worry that
without such a subjective mental-state requirement, the
uncertainties and expense of litigation will deter speakers from
making even truthful statements. Sullivan , 376 U. S.,
at 279. The First Amendment, we have concluded, “requires that we
protect some falsehood in order to protect speech that matters.” Gertz , 418 U. S., at 341.

															The same idea arises in the law respecting
obscenity and incitement to unlawful conduct. Like threats,
incitement inheres in particular words used in particular contexts:
Its harm can arise even when a clueless speaker fails to grasp his
expression’s nature and consequence. But still, the First Amendment
precludes punishment, whether civil or criminal, unless the
speaker’s words were “intended” (not just likely) to produce
imminent disorder. Hess v. Indiana , 414 U.S.
105 , 109 (1973) ( per curiam ); see Brandenburg ,
395 U. S., at 447; NAACP v. Claiborne Hardware
Co. , 458 U.S.
886 , 927–929 (1982). That rule helps prevent a law from
deterring “mere advocacy” of illegal acts—a kind of speech falling
within the First Amendment’s core. Brandenburg , 395
U. S., at 449. And for a similar reason, the First Amendment
demands proof of a defendant’s mindset to make out an obscenity
case. Obscenity is obscenity, whatever the purveyor’s mental state.
But we have repeatedly recognized that punishment depends on a
“vital element of scienter”—often described as the defendant’s
awareness of “the character and nature” of the materials he
distributed. Hamling v. United States , 418 U.S.
87 , 122–123 (1974); see Elonis , 575 U. S., at 739
(reiterating Hamling ). The rationale should by now be
familiar. Yes, “obscene speech and writings are not protected.” Smith v. California , 361 U.S.
147 , 152 (1959). But punishing their distribution without
regard to scienter would “have the collateral effect of inhibiting”
protected expression. Id. , at 151. Given “the ambiguities
inherent in the definition of obscenity,” the First Amendment
“requires proof of scienter to avoid the hazard of
self-censorship.” Mishkin , 383 U. S., at 511.[ 4 ]

															The same reasoning counsels in favor of
requiring a subjective element in a true-threats case. This Court
again must consider the prospect of chilling non-threatening
expression, given the ordinary citizen’s predictable tendency to
steer “wide[ ] of the unlawful zone.” Speiser , 357
U. S., at 526. The speaker’s fear of mistaking whether a
statement is a threat; his fear of the legal system getting that
judgment wrong; his fear, in any event, of incurring legal
costs—all those may lead him to swallow words that are in fact not
true threats. Some 50 years ago, Justice Marshall made the point
when reviewing a true-threats prosecution arguably involving only
political hyperbole. See Rogers v. United States , 422 U.S.
35 (1975). The Court in Rogers reversed the conviction
on other grounds, but Justice Marshall focused on the danger of
deterring non-threatening speech. An objective standard, turning
only on how reasonable observers would construe a statement in
context, would make people give threats “a wide berth.” Id. ,
at 47 (concurring opinion). And so use of that standard would
discourage the “uninhibited, robust, and wide-open debate that the
First Amendment is intended to protect.” Id. , at 48 (quoting Sullivan , 376 U. S., at 270).

															The reasoning—and indeed some of the words—came
straight from this Court’s decisions insisting on a subjective
element in other unprotected-speech cases, whether involving
defamation, incitement, or obscenity. No doubt, the approach in all
of those cases has a cost: Even as it lessens chill of protected
speech, it makes prosecution of otherwise proscribable, and often
dangerous, communications harder. And the balance between those two
effects may play out differently in different contexts, as the next
part of this opinion discusses. But the ban on an objective
standard remains the same, lest true-threats prosecutions chill too
much protected, non-threatening expression.

															B

															The next question concerns the type of
subjective standard the First Amendment requires. The law of mens rea offers three basic choices. Purpose is the most
culpable level in the standard mental-state hierarchy, and the
hardest to prove. A person acts purposefully when he “consciously
desires” a result—so here, when he wants his words to be received
as threats. United States v. Bailey , 444 U.S.
394 , 404 (1980). Next down, though not often distinguished from
purpose, is knowledge. Ibid. A person acts knowingly when
“he is aware that [a] result is practically certain to follow”—so
here, when he knows to a practical certainty that others will take
his words as threats. Ibid. (internal quotation marks
omitted). A greater gap separates those two from recklessness. A
person acts recklessly, in the most common formulation, when he
“consciously disregard[s] a substantial [and unjustifiable] risk
that the conduct will cause harm to another.” Voisine v. United States , 579 U.S. 686, 691 (2016) (internal quotation
marks omitted). That standard involves insufficient concern with
risk, rather than awareness of impending harm. See Borden v. United States , 593 U. S. ___, ___ (2021) (plurality
opinion) (slip op., at 5). But still, recklessness is morally
culpable conduct, involving a “deliberate decision to endanger
another.” Voisine , 579 U. S., at 694. In the threats
context, it means that a speaker is aware “that others could regard
his statements as” threatening violence and “delivers them anyway.” Elonis , 575 U. S., at 746 (Alito, J., concurring in
part and dissenting in part).[ 5 ]

															Among those standards, recklessness offers the
right path forward. We have so far mostly focused on the
constitutional interest in free expression, and on the correlative
need to take into account threat prosecutions’ chilling effects.
But the precedent we have relied on has always recognized—and
insisted on “accommodat[ing]”—the “competing value[ ]” in
regulating historically unprotected expression. Gertz , 418
U. S., at 348. Here, as we have noted, that value lies in
protecting against the profound harms, to both individuals and
society, that attend true threats of violence—as evidenced in this
case. See supra , at 2, 6. The injury associated with those
statements caused history long ago to place them outside the First
Amendment’s bounds. When despite that judgment we require use of a
subjective mental-state standard, we necessarily impede some
true-threat prosecutions. And as we go up the subjective mens
rea ladder, that imposition on States’ capacity to counter true
threats becomes still greater—and, presumably, with diminishing
returns for protected expression. In advancing past recklessness,
we make it harder for a State to substantiate the needed inferences
about mens rea (absent, as is usual, direct evidence). And
of particular importance, we prevent States from convicting morally
culpable defendants. See Elonis , 575 U. S., at 745
(opinion of Alito, J.). For reckless defendants have done more than
make a bad mistake. They have consciously accepted a substantial
risk of inflicting serious harm.

															Using a recklessness standard also fits with the
analysis in our defamation decisions. As noted earlier, the Court
there adopted a recklessness rule, applicable in both civil and
criminal contexts, as a way of accommodating competing interests.
See supra , at 7–8. In the more than half-century in which
that standard has governed, few have suggested that it needs to be
higher—in other words, that still more First Amendment “breathing
space” is required. Gertz , 418 U. S., at 342. And we
see no reason to offer greater insulation to threats than to
defamation. See Elonis , 575 U. S., at 748 (opinion of
Alito, J.). The societal interests in countering the former are at
least as high. And the protected speech near the borderline of true
threats (even though sometimes political, as in Rogers ) is,
if anything, further from the First Amendment’s central concerns
than the chilled speech in Sullivan -type cases ( i.e. ,
truthful reputation-damaging statements about public officials and
figures).

															It is true that our incitement decisions demand
more—but the reason for that demand is not present here. When
incitement is at issue, we have spoken in terms of specific intent,
presumably equivalent to purpose or knowledge. See Hess , 414
U. S., at 109; supra , at 8. In doing so, we recognized
that incitement to disorder is commonly a hair’s-breadth away from
political “advocacy”—and particularly from strong protests against
the government and prevailing social order. Brandenburg , 395
U. S., at 447. Such protests gave rise to all the cases in
which the Court demanded a showing of intent. See ibid. ; Hess , 414 U. S., at 106; Claiborne Hardware Co. ,
458 U. S., at 888, 928. And the Court decided those cases
against a resonant historical backdrop: the Court’s failure, in an
earlier era, to protect mere advocacy of force or lawbreaking from
legal sanction. See, e.g. , Whitney v. California , 274 U.S.
357 (1927); Gitlow v. New York , 268 U.S.
652 (1925); Abrams v. United States , 250 U.S.
616 (1919). A strong intent requirement was, and remains, one
way to guarantee history was not repeated. It was a way to ensure
that efforts to prosecute incitement would not bleed over, either
directly or through a chilling effect, to dissenting political
speech at the First Amendment’s core. But the potency of that
protection is not needed here. For the most part, the speech on the
other side of the true-threats boundary line—as compared with the
advocacy addressed in our incitement decisions—is neither so
central to the theory of the First Amendment nor so vulnerable to
government prosecutions. It is not just that our incitement
decisions are distinguishable; it is more that they compel the use
of a distinct standard here.[ 6 ]

															That standard, again, is recklessness. It offers
“enough ‘breathing space’ for protected speech,” without
sacrificing too many of the benefits of enforcing laws against true
threats. Elonis , 575 U. S., at 748 (opinion of Alito,
J.). As with any balance, something is lost on both sides: The rule
we adopt today is neither the most speech-protective nor the most
sensitive to the dangers of true threats. But in declining one of
those two alternative paths, something more important is gained:
Not “having it all”—because that is impossible—but having much of
what is important on both sides of the scale.[ 7 ]

															III

															It is time to return to Counterman’s case,
though only a few remarks are necessary. Counterman, as described
above, was prosecuted in accordance with an objective standard. See supra , at 3. The State had to show only that a reasonable
person would understand his statements as threats. It did not have
to show any awareness on his part that the statements could be
understood that way. For the reasons stated, that is a violation of
the First Amendment.

															We accordingly vacate the judgment of the
Colorado Court of Appeals and remand the case for further
proceedings not inconsistent with this opinion.

															It is so ordered. Notes 1 The statute Counterman
was charged with violating is titled a “stalking” statute and also
prohibits “[r]epeatedly follow[ing], approach[ing], contact[ing],
[or] plac[ing] under surveillance” another person. §18–3–602(1)(c).
But the State had no evidence, beyond what Counterman claimed, that
he actually had followed or surveilled C. W. For example, C.
W. had never noticed anything of that kind. So the prosecution
based its case solely on Counterman’s “[r]epeated[ ]
. . . communication[s]” with C. W. Ibid. 2 A preliminary
clarification may be useful, concerning the difference between
awareness of a communication’s contents and awareness of its
threatening nature. Everyone agrees, again, that the State must
prove the former—and Colorado law appears to hold as much. See
Colo. Rev. Stat. §18–3–602(1)(c); Brief for Respondent 18. So, for
example, if a defendant delivers a sealed envelope without knowing
that a threatening letter is inside, he cannot be liable for the
communication. So too (though this common example seems fairly
preposterous) if a “foreigner, ignorant of the English language,
who would not know the meaning of the words,” somehow manages to
convey an English-language threat. Elonis v. United
States , 575 U.S. 723, 738 (2015) (internal quotation marks
omitted). The question in this case arises when the defendant
(unlike in those hypotheticals) understands the content of the
words, but may not grasp that others would find them threatening.
Must he do so, under the First Amendment, for a true-threats
prosecution to succeed? 3 The concurrence relies on Virginia v. Black , 538 U.S.
343 (2003), to argue that the category of true threats itself
incorporates a mens rea element. See post , at 9–11,
14 (Sotomayor, J., concurring in part and concurring in judgment).
But that claim is based on a misreading. The statements the
concurrence quotes merely reflect that the statute involved in the
case required a showing of intent. Black did not address
whether the First Amendment demands such a showing, or why it might
do so. See United States v. Jeffries , 692 F.3d 473,
479–480 (CA6 2012) (Sutton, J.); see also post , at 9–10, and
n. 4 (Barrett, J., dissenting) (explaining that Black concerned a different part of the statute, preventing consideration
of contextual factors in assessing whether a statement was a
threat). 4 The dissent, in urging an
objective standard here, reads the obscenity decisions as requiring
merely that the defendant know “what the material depicts” (as a
speaker must know a communication’s contents). Post , at 5–6
(opinion of Barrett, J.) (relying on Hamling , 418
U. S., at 120–123). But see the statements quoted above: That
is not what they say. And indeed, this Court recently rejected the
dissent’s revisionist reading, explaining in detail—and in response
to a near-identical argument—that the obscenity decisions demand
awareness of “the character of [the materials,] not simply
[their] contents.” Elonis , 575 U. S., at 739–740
(discussing Hamling , 418 U. S., at 120–123, and Mishkin , 383 U. S., at 510). The dissent’s use of two
other First Amendment categories—fighting words and false
commercial speech—to support an objective test also falls flat. See post , at 3–4 (opinion of Barrett, J.). This Court has not
upheld a conviction under the fighting-words doctrine in 80 years.
At the least, that doctrine is today a poor candidate for spinning
off other First Amendment rules. False commercial speech is also a
poor analog, though for different reasons. Put aside that the line
of cases the dissent invokes has never been listed among the
historically unprotected categories of speech. See, e.g. , United States v. Stevens , 559
U.S. 460 , 468 (2010); see supra , at 5. Yet more
relevant, the Court has often noted that commercial speech is less
vulnerable to chill than most other speech is. See, e.g. , Board of Trustees of State Univ. of N. Y. v. Fox , 492 U.S.
469 , 481 (1989). And it is the fear of chill that has led to
state-of-mind requirements in the context of unprotected
speech. 5 Just to complete the mens rea hierarchy, the last level is negligence—but that is
an objective standard, of the kind we have just rejected. A person
acts negligently if he is not but should be aware of a substantial
risk—here , that others will understand his words as threats.
See Borden , 593 U. S., at ___ (plurality opinion) (slip
op., at 5). That makes liability depend not on what the speaker
thinks, but instead on what a reasonable person would think about
whether his statements are threatening in nature. See Elonis , 575 U. S., at 738 (“Having liability turn on
whether a reasonable person regards the communication as a
threat—regardless of what the defendant thinks—reduces culpability
. . . to negligence” (internal quotation marks
omitted)). 6 Our obscenity decisions
are of no help in this inquiry, because the Court has never
determined the precise mens rea needed to impose punishment.
In arguing to the contrary, the concurrence relies mainly on Hamling . Post , at 18–19 (opinion of Sotomayor, J.).
But if the dissent is wrong in saying that Hamling (and
other obscenity decisions) allowed an objective inquiry, see supra , at 9, n. 4, the concurrence is wrong in suggesting
that it required use of a purpose or knowledge standard. As to the
concurrence’s claim, Hamling held only that a statute with
that standard was “constitutionally sufficient.” 418 U. S., at
123. The decision said nothing about whether it was
constitutionally necessary, or instead whether a recklessness
standard would suffice as well. 7 The dissent accuses the
Court of making a “Goldilocks judgment” in favoring a recklessness
standard. Post , at 13 (opinion of Barrett, J.). But in law,
as in life, there are worse things than being “just
right.” SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–138

															_________________

															BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO

															on writ of certiorari to the court of appeals
of colorado

															[June 27, 2023]

															Justice Sotomayor, with whom Justice Gorsuch
joins as to Parts I, II, III–A, and III–B, concurring in part and
concurring in the judgment.

															When the government seeks to punish speech based
on its content, the First Amendment typically imposes stringent
requirements. This ensures that the government, even when pursuing
compelling objectives, does not unduly burden our Nation’s
commitment to free expression. “From 1791 to the present, however,
the First Amendment has permitted restrictions upon the content of
speech in a few limited areas.” United States v. Stevens , 559 U.S.
460 , 468 (2010) (internal quotation marks omitted). These
categories must be “well-defined and narrowly limited” in light of
the serious consequences that flow from carving out speech from
ordinary First Amendment protections. Chaplinsky v. New
Hampshire , 315 U.S.
568 , 571 (1942).

															“True threats” are one such category, and there
is a tradition of criminalizing threats stretching back centuries.
This includes punishing single utterances based on the message
conveyed. One paradigmatic example of this would be writing and
mailing a letter threatening to assassinate the President. Such
laws are plainly important. There is no longstanding tradition,
however, of punishing speech merely because it is unintentionally
threatening. Instead, this Court’s precedent, along with historical
statutes and cases, reflect a commonsense understanding that
threatening someone is an intentional act. As to what intent is
needed, “[t]raditionally, one intends certain consequences when he
desires that his acts cause those consequences or knows that those
consequences are substantially certain to result from his acts.” Tison v. Arizona , 481 U.S.
137 , 150 (1987) (internal quotation marks omitted). This does
not require showing that an individual intends to carry through
with the threat. But it does require showing that an individual
desires to threaten or is substantially certain that her statements
will be understood as threatening.

															Today, unfortunately, the Court unnecessarily
departs from this traditional understanding. That is not to say
that I disagree with the Court on everything. Far from it. I join
the Court’s conclusion that some subjective mens rea is
required in true-threats cases. I also agree that in this
particular case, where petitioner was prosecuted for stalking that
involved threatening statements, a mens rea of recklessness
is amply sufficient. Where I part ways with the Court is that I
would not reach the distinct and more complex question whether a mens rea of recklessness is sufficient for true-threats
prosecutions generally. Further, requiring nothing more than a mens rea of recklessness is inconsistent with precedent,
history, and the commitment to even harmful speech that the First
Amendment enshrines. I therefore respectfully concur only in part
and in the judgment.

															I

															As an initial matter, I do not believe that
this Court should reach the question whether recklessness is
sufficient for true-threats prosecutions. A key conceptual
distinction is helpful for explaining why. On the one hand, there
are statements that are objectively threatening. In some cases,
such statements can be punished because they fall into the
unprotected category of “true threats.” Yet such statements can
also be punished if they fall into another category of unprotected
speech, such as speech integral to criminal conduct. Or they might
warrant less First Amendment protection for other reasons. On the
other hand, there is the question of what constitutes the
well-defined and longstanding category of unprotected true threats.
It is with this latter question that I do not see the need to
address whether a mens rea of recklessness is sufficient
across the board.

															First, the courts below did not address whether
recklessness was sufficient to prosecute true threats and neither
of the actual parties have advocated a recklessness standard.
Colorado disclaimed the idea that recklessness was required, and
petitioner asserted, correctly, that recklessness had not been
raised under traditional principles of party presentation. The
briefing on recklessness consists almost entirely of a few pages of
an argument in the alternative at the tail end of an amicus brief filed by the United States.

															Second, because petitioner was prosecuted for
stalking involving threatening speech, this case does not require
resort to the true-threats exemption to the First Amendment.

															True-threats doctrine covers content-based
prosecutions for single utterances of “pure speech,” which need not
even be communicated to the subject of the threat. Watts v. United States , 394 U.S.
705 , 707 (1969) ( per curiam ). The First Amendment
would normally place strict limits on such prosecutions. So there
is typically a need to determine whether the speech in question
falls within the traditionally unprotected category of true
threats.

															This is not such a case, however. Petitioner was
convicted for “stalking [causing] serious emotional distress” for a
combination of threatening statements and repeated, unwanted,
direct contact with C. W. 497 P.3d 1039, 1043 (Colo. App.
2021).[ 1 ] This kind of
prosecution raises fewer First Amendment concerns for a variety of
reasons. Stalking can be carried out through speech but need not
be, which requires less First Amendment scrutiny when speech is
swept in. See, e.g. , Rumsfeld v. Forum for
Academic and Institutional Rights, Inc. , 547 U.S.
47 , 62 (2006). The content of the repeated communications can
sometimes be irrelevant, such as persistently calling someone and
hanging up, or a stream of “utterly prosaic” communications. Ante , at 1. Repeatedly forcing intrusive communications
directly into the personal life of “an unwilling recipient” also
enjoys less protection. Rowan v. Post Office Dept. , 397 U.S.
728 , 738 (1970). Finally, while there is considerable risk with
a single intemperate utterance that a speaker will “accidentally or
erroneously incur liability,” ante , at 7 (internal quotation
marks and alterations omitted), that risk is far reduced with a
course of repeated unwanted contact. Take, for example, petitioner
continuously contacting C. W. despite her blocking him.

															Given this, prosecuting threatening statements
made as part of a course of stalking does not squarely present the
hardest questions about the mens rea required to prosecute
isolated utterances based solely on their content.[ 2 ] True-threats doctrine came up below only
because of the lower courts’ doubtful assumption that petitioner
could be prosecuted only if his actions fell under the true-threats
exception. I do not think that is accurate, given the lessened
First Amendment concerns at issue. In such cases, recklessness is
amply sufficient. And I would stop there. There is simply no need
to reach out in this stalking case to determine whether anything
more than recklessness is needed for punishing true threats
generally.

															II

															Lest there be any doubt, the First Amendment
stakes around the definition of “true threats” are high indeed. The
First Amendment’s mantle covers speech that is “vituperative,
abusive and inexact.” Watts , 394 U. S., at 708. “It
might be tempting to dismiss” seemingly low-value speech “as
unworthy of . . . robust First Amendment protections.” Mahanoy Area School Dist. v. B. L. , 594 U. S.
___, ___ (2021) (slip op., at 11). Yet “[m]ost of what we say to
one another lacks ‘religious, political, scientific, educational,
journalistic, historical, or artistic value’ (let alone serious
value), but it is still sheltered from Government regulation.” Stevens , 559 U. S., at 479 (emphasis deleted). First
Amendment vigilance is especially important when speech is
disturbing, frightening, or painful, because the undesirability of
such speech will place a heavy thumb in favor of silencing it. In
response, the Court has upheld First Amendment rights in the
context of gruesome animal cruelty videos, id ., at 472;
cross burning, Virginia v. Black , 538
U.S. 343 , 347–348 (2003); hateful rhetoric in protests of the
funerals of fallen soldiers, Snyder v. Phelps , 562 U.S.
443 , 448–449, 458 (2011); and computer-generated images of
child pornography, Ashcroft v. Free Speech Coalition , 535 U.S.
234 , 239–240, 258 (2002).

															The risk of overcriminalizing upsetting or
frightening speech has only been increased by the internet. Our
society’s discourse occurs more and more in “the ‘vast democratic
forums of the Internet’ in general, and social media in
particular.” Packingham v. North Carolina , 582 U.S.
98, 104 (2017) (citation omitted). “Rapid changes in the dynamics
of communication and information transmission” have led to equally
rapid and ever-evolving changes “in what society accepts as proper
behavior.” Ontario v. Quon , 560
U.S. 746 , 759 (2010). Different corners of the internet have
considerably different norms around appropriate speech. Online
communication can also lack many normal contextual clues, such as
who is speaking, tone of voice, and expression. Moreover, it is
easy for speech made in a one context to inadvertently reach a
larger audience.

															Without sufficient protection for
unintentionally threatening speech, a high school student who is
still learning norms around appropriate language could easily go to
prison for sending another student violent music lyrics, or for
unreflectingly using language he read in an online forum. “[A]
drunken joke” in bad taste can lead to criminal prosecution. Perez v. Florida , 580 U.S. 1187 (2016) (Sotomayor,
J., concurring in denial of certiorari). In the heat of the moment,
someone may post an enraged comment under a news story about a
controversial topic. Another person might reply equally heatedly.
In a Nation that has never been timid about its opinions, political
or otherwise, this is commonplace.

															Many of this Court’s true-threats cases involve
such charged political speech. See Black , 538 U. S., at
348–349 (Ku Klux Klan rally); Watts , 394 U. S., at 707
(antiwar protest); Rogers v. United States , 422 U.S.
35 , 41–42, 47–48 (1975) (Marshall, J., concurring) (opposition
to Nixon’s policies toward China). Amici give further
contemporary examples of such speech from across the political
spectrum. See, e.g. , Brief for American Civil Liberties
Union et al. as Amici Curiae 24–29. Much of this speech
exists in a gray area where it will be quite hard to predict
whether a jury would find it threatening. And the ubiquity of such
speech raises the possibility of highly discretionary
enforcement.

															The burdens of overcriminalization will fall
hardest on certain groups. A jury’s determination of when angry
hyperbole crosses the line will depend on amorphous norms around
language, which will vary greatly from one discursive community to
another. Juries’ decisions will reflect their “background knowledge
and media consumption.” Minnesota Voters Alliance v. Mansky , 585 U. S. ___, ___ (2018) (slip op., at 17).
“[S]peakers whose ideas or views occupy the fringes of our society
have more to fear, for their violent and extreme rhetoric, even if
intended simply to convey an idea or express displeasure, is more
likely to strike a reasonable person as threatening.” United
States v. White , 670 F.3d 498, 525 (CA4 2012) (Floyd,
J., concurring in part and dissenting in part). Members of certain
groups, including religious and cultural minorities, can also use
language that is more susceptible to being misinterpreted by
outsiders. And unfortunately yet predictably, racial and cultural
stereotypes can also influence whether speech is perceived as
dangerous. See, e.g. , A. Dunbar, C. Kubrin, & N.
Scurich, The Threatening Nature of “Rap” Music, 22 J. Psychol. Pub.
Pol’y & L. 281, 281–282, 288–290 (2016).

															On the other hand, the internet has also made
stalking and harassment even easier. Stalking can be devastating
and dangerous. See Brief for First Amendment Scholars as Amici
Curiae 7–8. Lives can be ruined, and in the most tragic
instances, lives are lost. Ibid. Harassers can hide behind
online anonymity while tormenting others. This happens in the
context of intimate relationships and it happens with strangers.
Overly constraining our society’s ability to respond to stalking
would come at a real cost. For the reasons given, however, a mens rea standard for true threats would not hinder stalking
prosecutions. See supra, at 3–5.

															Even isolated threatening speech can do real
harm. Such speech not only disrupts lives, it can silence the
speech of others who become afraid to speak out. A mens rea require- ment would not, however, present an uncommon or
insurmountable barrier to true-threats prosecutions.[ 3 ] Nonetheless, under such a standard, there
will be some speech that some find threatening that will not and
should not land anyone in prison.

															III

															These high First Amendment stakes are further
reason for caution when delineating the boundaries of what
constitutes a true threat. In undertaking that analysis, the Court
and I part ways on the order of operations. The Court begins by
defining true threats as all objectively threatening speech,
entirely independent of whether the speaker intended to be
threatening, ante , at 6, and the lead dissent agrees, post , at 2–3 (opinion of Barrett, J.). The Court gets there
by relying on this Court’s interpretation of the word “threat” in a
federal statute. Ante , at 6 (citing Elonis v. United States , 575 U.S. 723, 733 (2015)). The Court declares
all such speech categorically unprotected, and then asks what
“buffer zone” is needed in order to protect other, unthreatening
speech. See ante , at 4–7.

															Respectfully, I see the analysis differently.
The first step in the analysis should instead be to ask about the
scope of the well-defined and narrow category of “true threats” as
a constitutional matter. This Court has already warned about the
danger of creating new categories of “unprotected speech” exempt
from the ordinary First Amendment framework for balancing our
society’s commitment to free expression with other interests. Stevens , 559 U. S., at 470. If courts were at liberty
to redefine what counts as a “threat” or “defamation” at will, this
would achieve the same results as creating new categories of
unprotected speech.

															Thus, the Court must first ask whether there is
a long-standing tradition of punishing inadvertent threats as “true
threats.” This Court’s prior definition of the word “threat” in a
federal statute, looking primarily to dictionaries, Elonis ,
575 U. S., at 733, does not tell us the scope of “true
threats” for First Amendment purposes. Elonis itself made
clear that it did “not . . . consider any First Amendment
issues.” Id. , at 740. Instead, a careful examination of this
Court’s true-threats precedent and the history of threat crimes
does not support a long-settled tradition of punishing
inadvertently threatening speech.

															A

															A natural place to begin, one might think,
would be with this Court’s most recent decision involving the First
Amendment, mens rea , and true threats. Yet to read the
Court’s decision, one would have little idea that in a seminal 2003
decision, this Court held that a threat conviction could not stand
because of an insufficient mens rea requirement. See Black , 538
U.S. 343 . Black plainly sets out a conception of true
threats as including a mens rea requirement.

															In Black , the Court confronted the
constitutionality of a Virginia statute that prohibited burning a
cross with intent to intimidate. Only part of the decision in Black is contained in a five-Justice majority opinion. The
other relevant parts of the decision were written by the Members of
that majority, who split into a four-Justice plurality and Justice
Scalia’s partial concurrence in judgment.

															The majority explained why a prohibition on
cross burning with intent to threaten was constitutional, beginning
by defining the category of true threats. “ ‘True
threats,’ ” the majority explained “encompass those statements
where the speaker means to communicate a serious expression
of an intent to commit an act of unlawful violence.” Id. , at
359 (emphasis added). However, “[t]he speaker need not actually
intend to carry out the threat,” as true threats also include
intimidation alone. Id. , at 359–360. And “[i]ntimidation in
the constitutionally proscribable sense of the word is a type of
true threat, where a speaker directs a threat to a person or group
of persons with the intent of placing the victim in fear of
bodily harm or death.” Id. , at 360 (emphasis added).

															To the extent the Virginia statute covered
intentionally threatening cross burning, it was thus tailored to
cover only true threats. Critically, however, the statute also
provided that “ ‘[a]ny such burning of a cross shall be prima
facie evidence of an intent to intimidate.’ ” Id. , at
348. In other words, the all-important intent requirement could be
satisfied by the mere conduct itself.

															Consistent with the majority’s definition of
true threats, both the plurality and Justice Scalia agreed that the
lack of a sufficient intent requirement meant that a conviction
under the statute could not stand. Id. , at 367, 379. For the
plurality, the intent requirement was “the very reason why a State
may ban cross burning” because it “distinguish[ed]” between the
constitutionally unprotected true threat of burning a cross with
intent to intimidate and “cross burning [as] a statement of
ideology.” Id. , at 365–366.[ 4 ] For Justice Scalia, the “plurality [was] correct in all
of this.” Id. , at 372 (opinion concurring in part,
concurring in judgment in part, and dissenting in part). There was
a constitutional need for a distinction between cross burning
“ ‘intended to intimidate’ ” and cross burning as
“ ‘a statement of ideology.’ ” Ibid . The plurality
and Justice Scalia only parted ways as to whether to hold that the
statute was “facially invalid,” id. , at 367 (plurality
opinion), or just that the jury instructions made it unclear
“whether the jury has rendered its verdict ( as it must )”
with sufficient consideration of “intent to intimidate,” id. , at 380 (opinion of Scalia, J.) (emphasis added).

															The through-line is not hard to discern. First,
unprotected true threats include a subjective mens rea requirement. Id ., at 360 (majority opinion). Second, as a
result, “Virginia’s statute does not run afoul of the First
Amendment insofar as it bans cross burning with intent to
intimidate.” Id. , at 362 (majority opinion). Third, a
conviction could not stand if it had categorically dispensed with
that intent requirement, id. , at 365–366 (plurality
opinion), or if the jury had insufficiently considered “intent to
intimidate,” id. , at 380 (opinion of Scalia, J.).

															In sum, all five Justices in the Black majority agreed that a true-threats prosecution could not stand
under the First Amendment without a sufficient subjective mens
rea requirement.[ 5 ]

															B

															In defining true threats as “statements where
the speaker means to communicate a serious expression of an intent
to commit an act of unlawful violence,” id ., at 359, the
Court in Black echoed the traditional understanding of
threats. Historically, threat crimes covered the same kind of
subjectively threatening speech Black invoked.

															In reviewing this history, it is also vital to
keep in mind the nature of the inquiry. Removing speech from normal
First Amendment scrutiny is a major shift in the balance of
expression and public interest that our Constitution generally
strikes. The inquiry is therefore whether there is a “long-settled
tradition” of prohibiting inadvertently threatening speech. Stevens , 559 U. S., at 469. None of the other opinions,
however, identify a historical case that expressly raised the
question whether a subjective mens rea is required and held
that it is not. That is a remarkable thing when one considers that
the sample size consists of decisions from both sides of the
Atlantic across centuries.

															There was a long tradition of crimes for
threatening another person in order to extort them. See, e.g. , 1796 N. J. Laws §57, p. 108. Colorado and the
United States admit that this core category of threat crimes
required intent.

															Even beyond that, a subjective mens rea remained a key component of threat offenses. An 18th-century
English statute made it a capital offense to “knowingly send any
letter . . . threatening to kill or murder any of his
Majesty’s subject or subjects” or to threaten arson. 27 Geo. II, c.
15, in 21 Eng. Stat. at Large 184 (1754). A leading treatise
explained that the statute was “levelled against such whose intention it was [to] obtain their object by creating terror
in [the victim’s] mind.” 2 W. Russell & D. Davis, Crimes &
Misdemeanors *1845 (emphasis added).

															Consistent with this, defendants were convicted
of “knowingly, wilfully, and feloniously” sending threatening
letters. Rex v. Tyler , 1 Mood. 428, 168 Eng. Rep.
1330 (1835); Rex v. Paddle , Russ. & Ry. 484, 168
Eng. Rep. 910 (1822) (indictment for “knowingly, unlawfully,
wickedly, and feloniously” sending a threatening letter); see also King v. Girdwood , 1 Leach 142, 168 Eng. Rep. 173
(1776) (indictment for “feloniously” sending a threatening letter).
“ ‘[K]nowingly and wilfully’ effecting any result applies to
those who know that the acts performed will have that effect, and
perform them with the intention that such shall be their
operation.” 12 American and English Encyclopaedia of Law 522–524
(J. Merrill ed. 1890); see also J. Boag, Imperial Lexicon of the
English Language 530 (1850) (defining “felonious” as “with the
deliberate purpose to commit a crime”).

															The necessary mens rea could sometimes be
inferred from the content of the letter, but could be rebutted by
other evidence. See King v. Philipps , 6 East 464,
475, 102 Eng. Rep. 1365, 1369 (1805). Courts thus considered “the
threat intended to be made by the prisoner” and “what he meant by
what he had written” in determining whether he had violated the
statute. Regina v. Hill , 5 Cox 233, 235 (Crim. Cas.
1851); see also King v. John and Mary Hammond , 1
Leach 444, 446, 168 Eng. Rep. 324, 325 (1787) (describing the
offense of sending a threatening letter “to the party whose fears
the threat it contains was calculated to alarm”).

															Threat laws in the United States were of a
piece. Some state laws about threats expressly required
maliciousness. See Me. Rev. Stat., Tit. 12, ch. 154, §26 (1840);
1884 La. Acts No. 64, §1, p. 86. Courts more generally emphasized
the importance of a mens rea requirement. See, e.g. , State v. Benedict , 11 Vt. 236, 239 (1839). The North
Carolina Su- preme Court, for example, singled out threats as
quintessential examples of offenses where it is “necessary” to
prove the “ intent of the particular letter.” State v. Murphy , 84 N. C. 742, 743–744 (1881). And where state
statutes may have been silent on intent to threaten, courts read
such requirements in. See Commonwealth v. Morton , 140
Ky. 628, 631, 131 S.W. 506, 507–508 (1910) (letter must be
“calculated to alarm, disturb, intimidate, or injure”); see also State v. Stewart , 90 Mo. 507, 512, 2 S.W. 790, 792
(1887) (jury instruction requiring that “ ‘defendant intended
to threaten’ ”).

															Leading treatises also explained the importance
of mens rea . See 25 American and English Encyclopaedia of
Law 1071 (C. Williams ed. 1894) (when there is a question as to
“whether or not the letter contains the threat alleged, the intent
is a question for the jury”); see also 2 R. Anderson, Wharton’s
Criminal Law and Procedure §803, pp. 659–660 (1957) (threats must
be “intended to put the person threatened in fear of bodily harm”);
2 J. Bishop, Commentaries on the Criminal Law §1201, p. 664 (6th
ed. 1877) (“The intent, both under the unwritten law and under the
statutes, must be evil”).

															Against that backdrop, I return to the inquiry
at hand: whether there is a “long-settled” or “well-established”
history of prosecuting inadvertently threatening speech. There is
no line of cases or pattern of statutes affirmatively stating that
an objective standard is sufficient.

															C

															Put together, Black and the history
point to an intent requirement. When Black defined and
analyzed true threats in terms of intent, there is no reason to
think the Court used intent to mean anything less than its
traditional definition of purpose or knowledge. See, e.g. , Tison , 481 U. S., at 150. Nor would a recklessness
standard play the necessary role of distinguishing between cross
burning that is “ ‘intended to intimidate’ . . . and
nonintimidating cross burning [that] cannot be prohibited.” 538
U. S., at 372 (opinion of Scalia, J.). Given the violent
history of the symbol, it is hard to imagine that any politically
motivated cross burning done within view of the public could be
carried out without awareness of some risk a reasonable spectator
would feel threatened. See id. , at 388–391 (Thomas, J.,
dissenting). Recklessness, which turns so heavily on an objective
person standard, would not have been enough.

															As to the history, it is true that over time
courts have often used a wide variety of terms to describe mental
states. See, e.g. , Morissette v. United
States , 342 U.S.
246 , 252 (1952). Yet “[t]he element of intent in the criminal
law has traditionally been viewed as a bifurcated concept embracing
either the specific requirement of purpose or the more general one
of knowledge or awareness.” United States v. United
States Gypsum Co. , 438 U.S.
422 , 445 (1978); see also Tison , 481 U. S., at 150; Carter v. United States , 530
U.S. 255 , 270 (2000) (describing “feloniously” as equivalent to
“ ‘intent’ ”). And at the very least, there is no
well-settled history showing that it is enough for a defendant to
be merely aware of some risk that their statements could be
threatening. See, e.g. , Borden v. United
States , 593 U. S. ___, ___ (2021) (plurality opinion)
(slip op., at 5) (recklessness requires awareness of a level of
risk that “need not come anywhere close to a likelihood”). The
history is, instead, replete with the enduring and commonsense
pairing of threats and intent.

															D

															The Court, eschewing Black and history,
instead reaches its result based on the need for a “buffer zone”
drawn by analogy to other categories of unprotected speech. Ante , at 4. For the reasons above, I do not think we can
leap ahead to this question. With that caveat, I agree with the
Court that precedent in other areas of unprotected speech and
concerns about chilling support a subjective mens rea requirement for true threats. Yet these same chilling concerns only
further buttress the conclusion that true threats should be limited
to intentionally threatening speech. Indeed, in the concurrence by
Justice Marshall that the Court invokes, ante , at 9–10, he
advocated “requir[ing] proof that the speaker intended his
statement to be taken as a threat,” based on concerns about
punishing “pure speech.” Rogers , 422 U. S., at 47–48.
In determining the appropriate mens rea , the Court
analogizes to three categories of traditionally unprotected speech:
incitement, obscenity, and defamation. None of these warrants
expanding the narrow boundaries of true threats.

															1

															Speech inciting harm is the closest cousin to
speech threatening harm. Both incitement and threats put other
people at risk, and both “sprin[g] from [Justice] Holmes’s ‘clear
and present danger’ test.” G. Blakey & B. Murray, Threats, Free
Speech, and the Jurisprudence of the Federal Criminal Law, 2002 B.
Y. U. L. Rev. 829, 1069 (2002). Like true threats, incitement’s
scope is defined in terms of both intention and effect, covering
speech “[1] intended to produce, and [2] likely to produce, imminent disorder.” Hess v. Indiana , 414 U.S.
105 , 109 (1973) ( per curiam ).

															Despite their similar nature and source, the
Court today draws a hard line between the two. Incitement requires
“ ‘inten[t].’ ” Ante , at 8. While for threats, the
speaker need only be “aware that others could regard his statements
as threatening violence and delive[r] them anyway.” Ante , at
11 (internal quotation marks omitted). The Court justifies this
asymmetry by the idea “that incitement to disorder is commonly a
hair’s-breadth away from political ‘advocacy,’ ” ante ,
at 13, and the lead dissent says much the same, post , at 7
(opinion of Barrett, J.). These opinions offer little basis for
distinguishing threats on this ground, as this Court’s own cases
show time and again how true-threats prosecutions sweep in
political speech. See Black , 538 U. S., at 348–349; Watts , 394 U. S., at 707 (antiwar protest); Rogers , 422 U. S., at 41–42 (Marshall, J., concurring)
(opposition to Nixon’s policies toward China).[ 6 ] Not only that, but incitement itself is often
only a hair’s-breadth away from threats.

															Take the seminal incitement case NAACP v. Claiborne Hardware Co. , 458 U.S.
886 (1982). During a civil rights boycott, NAACP leader Charles
Evers, brother of the murdered civil rights hero Medgar Evers, gave
a series of heated speeches. See id. , at 898–902. He intoned
that “boycott violators would be ‘disciplined’ ” and that
“ ‘[i]f we catch any of you going in any of them racist
stores, we’re gonna break your damn neck.’ ” Id. , at
902. The Court acknowledged that in this charged context, these
speeches “might have been understood as inviting an unlawful form
of discipline or, at least, as intending to create a fear of
violence.” Id. , at 927. Yet inflammatory and threatening as
these speeches were, they did not constitute incitement. That was
because “there [was] no evidence—apart from the speeches
themselves—that Evers authorized, ratified, or directly threatened
acts of violence.” Id ., at 929. His speeches were thus not
“ ‘directed to inciting or producing imminent lawless
action’ ” and he had not “specifically intended to further an
unlawful goal.” Id. , at 925, n. 68, 928.

															Under a recklessness rule, Claiborne would have come out the other way. So long as Evers had some
subjective awareness of some risk that a reasonable person could
re- gard his statements as threatening, that would be sufficient.
It would be quite troubling indeed to adopt a rule rendering this
Court’s admirable defense of the First Amendment wrongly decided.
Nor is Claiborne the only example. The foundational
incitement case, Brandenburg v. Ohio , 395 U.S.
444 (1969) ( per curiam ), extended First Amendment
protections to armed Klan members uttering racial slurs, a warning
that “there might have to be some revengeance taken,” and plans for
a “ ‘four hundred thousand strong’ ” march in two cities. Id ., at 446. Then, as now, there would be at least some risk
that a reasonable resident of those cities could feel
threatened.

															These concrete examples illustrate a more
general principle. Speech inciting imminent and dangerous unlawful
activity will reasonably be threatening to those who would be
harmed by that illegality. In all such cases, whether seminal
decisions by this Court or guilty pleas that barely see the inside
of a courtroom, the Court’s decision effectively downgrades to
recklessness the mens rea required for incitement of
unlawful force; prosecutors could now simply charge such offenses
as true threats. This is particularly worrisome because the
standard for recklessness decreases the lower the “social utility”
of the conduct. 1 W. LaFave, Substantive Criminal Law §5.4(f )
(3d ed. 2018). That is a troubling standard for juries in a
polarized nation to apply in cases involving heated political
speech. This collateral damage can be avoided, however, if intent
to threaten is understood as part of a true threat, just like
intent to incite is part of incitement.

															2

															While obscenity is a step further afield of
true threats and incitement, examination of this Court’s obscenity
case law further supports an intent requirement for prosecutions of
true threats.

															The Constitution “ ‘requires proof of
scienter’ ” in part “ ‘to compensate for the ambiguities
inherent in the definition of obscenity.’ ” Hamling v. United States , 418 U.S.
87 , 123 (1974). This is in line with this Court’s more general
observation that “vagueness” of “content-based regulation of
speech” is of “special concern” when it comes to “criminal
statute[s].” Reno v. American Civil Liberties Union , 521 U.S.
844 , 871–872 (1997).[ 7 ]

															Specifically, the Court has held that a
“knowledge” mens rea is sufficient for obscenity: “It is
constitutionally sufficient that the prosecution show that a
defendant had knowledge of the contents of the materials he
distributed, and that he knew the character and nature of the
materials.” Hamling , 418 U. S., at 123. This ensures
that “not innocent but calculated purveyance of filth
. . . is exorcised.” Id. , at 122 (internal
quotation marks omitted). While the Court today asserts that this
Court has “never determined the precise mens rea ” for
obscenity, ante , at 13, n. 6, the Court has cited a
knowledge standard approvingly for half a century, see Hamling , 418 U. S., at 123; Elonis , 575
U. S., at 739.[ 8 ] Applying
that standard to threats, the “ ‘calculated purveyance’ of a
threat would require that [a defendant] know the threatening nature
of his communication.” Id ., at 739.

															The considerations that drove this Court to
approve a higher mens rea for obscenity apply here as well.
With obscenity, the ambiguity comes partly from the reliance on
“ ‘contemporary community standards’ ” to define what is
obscene. Hamling , 418 U. S., at 129. Such a standard is
notoriously amorphous, and will change a great deal between
communities and over time. The same chilling concerns apply to true
threats. A recklessness standard based on what a reasonable person
could find threatening will depend on ever-shifting community norms
around language and when heated speech crosses the line from overly
aggressive to criminal. See supra , at 5–7.[ 9 ]

															3

															Finally, the Court relies heavily upon this
Court’s framework for defamation. Specifically, the Court
analogizes to the “reckless disregard” standard for defamation of
public figures or punitive damages for certain claims involving
private figures. New York Times Co. v. Sullivan , 376 U.S.
254 , 279–280 (1964).

															Yet while civil defamation may be “the best
known and best theorized example” of unprotected speech, ante , at 8, the same does not go for criminal prosecution of
defamation. It is true that this Court in 1964 invalidated a
prosecution for criminal libel for failing to apply the Sullivan standard, which covers “only those false statements
made with a high degree of awareness of their probable falsity.” Garrison v. Louisiana , 379 U.S.
64 , 75 (1964). Yet the Court expressed strong skepticism of the
very concept of criminal prosecutions for libel and noted the
salutary trend of its “virtual disappearance.” Id. , at
69–70 . The Court approvingly cited the Model Penal Code’s
recommendation that criminal libel be limited to speech likely to
cause a breach of the peace and “calculated” to do so. Id. ,
at 70. This is not a promising theoretical springboard for
determining the mens rea required to criminalize other
speech.

															If the Court were correct that the Sullivan standard is the appropriate analogy, however, then
this standard should guide how to analyze recklessness in
true-threats prosecutions. The generic formulation of recklessness
requires that an individual disregard a relatively unspecified
level of risk that the harm in question will occur. See Borden , 593 U. S., at ___ (plurality opinion) (slip
op., at 5). Within that potentially broad range, Sullivan provides a more definite and demanding level of risk, reflecting
the First Amendment concerns at stake. The Court has “made clear
that the defendant must have made the false publication with a high
degree of awareness of probable falsity or must have entertained
serious doubts as to the truth.” Harte-Hanks Communications,
Inc. v. Connaughton , 491 U.S.
657 , 667 (1989) (internal quotation marks and ellipsis
omitted). This makes sense. Allowing liability for awareness of a
small chance that a story may be false would undermine the very
shield Sullivan erects.

															For similar reasons, after today’s ruling,
future courts grappling with how to articulate the appropriate
level of recklessness in true-threats cases would be well served to
consult the Sullivan standard. The equivalent to Sullivan for true threats would require a high degree of
awareness that a statement was probably threatening or serious
doubts as to the threatening nature of the statement. This could
avoid the chilling that would arise from a more amorphous and
easily satisfied standard.

															4

															This Court’s various frameworks for
unprotected speech do not speak with one voice, as perhaps befits
the First Amendment. The above survey does not, however, give
reason to depart from the traditional understanding of true
threats. To the contrary, this case law supports keeping true
threats within their traditional bounds. Incitement similarly
requires intent. The same chilling concerns that have led this
Court to approve a knowledge requirement for obscenity are present
with true threats. And to the extent the civil defamation context
is relevant, at the very least, it points to a precise and
demanding form of recklessness.[ 10 ]

															IV

															Maintaining true threats doctrine within its
traditional boundaries will guard against the overcriminalization
of a wide range of political, artistic, and everyday speech based
on its content alone. This does not mean that unintentionally
threatening communications are exempt from regulation, far from it.
As explained above, there are far fewer First Amendment concerns
with stalking laws that punish repeated, targeted, unwanted conduct
and accompanying speech. For that reason, recklessness is quite
sufficient. As to true threats, intent is neither an unusual nor an
insurmountable bar. “[C]ourts and juries every day pass upon
knowledge, belief and intent . . . having before them no
more than evidence of . . . words and conduct, from
which, in ordinary human experience, mental condition can be
inferred.” American Communications Assn. v. Douds , 339 U.S.
382 , 411 (1950).

															*  *  *

															I agree with the Court’s conclusion that the
First Amendment requires a subjective mens rea in
true-threats cases, and I also agree that recklessness is amply
sufficient for this case. Yet I would stop there, leaving for
another day the question of the specific mens rea required
to prosecute true threats generally. If that question is reached,
however, the answer is that true threats encompass a narrow band of
intentional threats. Especially in a climate of intense
polarization, it is dangerous to allow criminal prosecutions for
heated words based solely on an amorphous recklessness standard.
Our society has often concluded that an intent standard sets a
proper balance between safety and the need for a guilty mind, even
in cases that do not involve the First Amendment. Surely when the
power of the State is called upon to imprison someone based on the
content of their words alone, this standard cannot be considered
excessive. Because I part ways with the Court on this score, I
respectfully concur only in part and in the judgment. Notes 1 The statute of conviction
applies to someone who “[r]epeatedly follows, approaches, contacts,
places under surveillance, or makes any form of communication with
another person . . . in a manner that would cause a
reasonable person to suffer serious emotional distress and does
cause that person . . . serious emotional distress.”
Colo. Rev. Stat. §18–3–602(1)(c) (2022). 2 For these reasons,
stalking prosecutions that do not rely on the content of
communications would raise even fewer First Amendment
concerns. 3 Intent requirements are
common, including for incitement that results in actual violence,
not just the threat of it. See infra , at 15–17. For that
reason there are longstanding frameworks for determining when
someone is not guilty by reason of insanity, and when delusions do
(and do not) defeat a showing of intent. See, e.g. , 1 W.
LaFave, Substantive Criminal Law §§7.1(a), (b) (3d ed. 2018); 2 id. , §9.2. 4 The lead dissent asserts
that the Black plurality’s decision was based on how the
statute “ ‘ignore[d] all of the contextual factors that are
necessary to decide whether a particular cross burning’ was covered
by the statute.” Post , at 9 (opinion of Barrett, J.)
(quoting 538 U. S., at 367 (plurality opinion)). But some
context is missing from this reading itself. The full sentence is
“all of the contextual factors that are necessary to decide whether
a particular cross burning is intended to intimidate .” Id. , at 367 (emphasis added). The plurality was thus
concerned with context to the extent it was relevant to the mens
rea requirement needed to render the statute constitutional. Id. , at 365–366. 5 According to the Court
today and the lead dissent, however, Black somehow managed
not to say anything about the First Amendment mens rea requirement for true-threats prosecutions—while striking down a
true-threat conviction under the First Amendment for an
insufficient mens rea requirement. On this reading, Black only discussed intent because “the statute involved in
the case required a showing of intent.” Ante , at 6,
n. 3; post , at 9, n. 4 (discussion of intent was
“a reference to the statutory requirements for a conviction,
not the constitutional requirements”). This puzzling
interpretation does not explain why an illusory mens rea requirement in a Virginia law would pose any First Amendment
problems if the Amendment did not impose a mens rea requirement of this kind. After all, “[w]hy would the First
Amendment care how a jury goes about finding an [intent] element
that is a matter of indifference to the Amendment?” United
States v. Heineman , 767 F.3d 970, 980 (CA10 2014). The
obvious answer, from Black ’s reasoning to its holding, is
that such a mens rea requirement was necessary for the
statute to target true threats. 6 Nor is this limited to
decisions by this Court. Threats cases sweep in political speech.
See, e.g. , State v. Taylor , 379 N. C.
589, 590, 866 S.E.2d 740, 744 (2021). Incitement cases can sweep in
nonpolitical speech. See, e.g. , Rice v. Paladin
Enterprises, Inc. , 128 F.3d 233 , 264, n. 11, 267 (CA4 1997). And still other
cases show how incitement and threats can often go hand in hand.
See, e.g. , State v. Caroll , 456 N. J.
Super. 520, 544–545, 196 A.3d 106, 120–121 (App. Div.
2018). 7 Analogously, the Court’s
civil defamation case law recognizes that heightened liability can
require a heightened mens rea ; even as to nonpublic figures,
a higher standard must be met for punitive damages in certain
cases. See, e.g. , Gertz v. Robert Welch, Inc. , 418 U.S.
323 , 349–350 (1974). 8 The Court has held,
however, that recklessness is sufficient for child pornography. See Osborne v. Ohio , 495 U.S.
103 , 115 (1990). This Court has emphasized time and again how
child pornography is “a special case” because “[t]he market for
child pornography [is] ‘intrinsically related’ to the underlying
abuse” and thus “ ‘an integral part of the production of such
materials, an activity illegal throughout the Nation.’ ” United States v. Stevens, 559
U.S. 460 , 471 (2010) (quoting New York v. Ferber , 458 U.S.
747 , 759, 761 (1982)); see also Osborne , 495 U. S.,
at 110–111. Child pornography, with its integral ties to separate
criminal conduct, is not a strong analogue for threats, which can
be fleeting statements in total isolation from any other
criminality (though it is a stronger analogy to threats as part of
an unlawful course of stalking). Yet the Court’s decision today
puts child pornography on a First Amendment par with overheated
political speech or violent song lyrics. 9 There is a further
safeguard in obscenity cases. Something is obscene if “taken as a
whole, [it] lacks serious literary, artistic, political, or
scientific value.” Ashcroft v. American Civil Liberties
Union , 535 U.S.
564 , 574 (2002) (internal quotation marks omitted). An intent
requirement can provide a similar safeguard for threats. As Virginia v. Black , 538
U.S. 343 (2003), explained, requiring intent distinguishes
between speech intended to intimidate and speech intended to
express a political statement. Id. , at 365–366 (plurality
opinion); id. , at 372 (opinion of Scalia, J.). 10 The
lead dissent headlines its analysis by pointing to this Court’s
case law on “fighting words.” Post , at 3–4 (opinion of
Barrett, J.). This is an unlikely candidate for a broader theory of
the First Amendment. For “nearly three-quarters of a century
. . . the Court has never . . . upheld a
fighting words conviction” and “[t]he cumulative impact of [the
Court’s] decisions is to make it unlikely that a fighting words law
could survive.” E. Chemerinsky, The First Amendment 1094 (6th ed.
2019). It is not hard to see why such convictions would be unlikely
to pass First Amendment muster; the leading case involved a
Jehovah’s Witness distributing literature who was arrested for
breach of the peace for calling a public official a “ ‘damned
Fascist.’ ” Chaplinsky v. New Hampshire , 315 U.S.
568 , 569, 573–574 (1942). Drawing upon a conviction like the
one in Chaplinksy as the proper model for criminalizing
political speech is proof itself of the serious risks with the lead
dissent’s approach. In any event, as to the question at hand, when
such breach of the peace offenses involved threats, intent to
threaten was required. See 2 R. Anderson, Wharton’s Criminal Law
and Procedure §803, pp. 659–660 (1957). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–138

															_________________

															BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO

															on writ of certiorari to the court of appeals
of colorado

															[June 27, 2023]

															Justice Thomas, dissenting.

															I join Justice Barrett’s dissent in full. I
write separately to address the majority’s surprising and misplaced
reliance on New York Times Co. v. Sullivan , 376 U.S.
254 (1964). In New York Times , this Court held that the
First Amendment bars public figures from recovering damages for
defamation unless they can show that the statement at issue was
made with “ ‘actual malice’—that is, with knowledge that it
was false or with reckless disregard of whether it was false or
not.” Id. , at 280. Like the majority’s decision today,
“ New York Times and the Court’s decisions extending it were
policy-driven decisions masquerading as constitutional law.” McKee v. Cosby , 586 U. S. ___, ___ (2019)
(Thomas, J., concurring in denial of certiorari) (slip op., at 2).
Instead of simply applying the First Amendment as it was understood
at the time of the Founding, “the Court fashioned its own
‘ “federal rule[s]” ’ by balancing the ‘competing values
at stake in defamation suits.’ ” Ibid. (quoting Gertz v. Robert Welch, Inc. , 418
U.S. 323 , 334, 348 (1974)); see also Bose Corp. v. Consumers Union of United States, Inc. , 466 U.S.
485 , 501–502 (1984) (acknowledging that “the rule enunciated in
the New York Times case” is “largely a judge-made rule of
law,” the “content” of which is “given meaning through the
evolutionary process of common-law adjudication”). “The
constitutional libel rules adopted by this Court in New York
Times and its progeny broke sharply from the common law of
libel, and there are sound reasons to question whether the First
and Fourteenth Amendments displaced this body of common law.” McKee , 586 U. S., at ___ (opinion of Thomas, J.) (slip
op., at 6). Thus, as I have previously noted, “[w]e should
reconsider our jurisprudence in this area.” Id. , at ___
(slip op., at 14); see also Berisha v. Lawson , 594
U. S. ___ (2021) (Thomas, J., dissenting from denial of
certiorari).

															I am far from alone. Many Members of this Court
have questioned the soundness of New York Times and its
numerous extensions. See, e.g. , Berisha , 594
U. S., at ___–___ (Gorsuch, J., dissenting from denial of
certiorari) (slip op., at 5–8); Coughlin v. Westinghouse
Broadcasting & Cable, Inc ., 476 U.S.
1187 (1986) (Burger, C. J., joined by Rehnquist, J.,
dissenting from denial of certiorari); Gertz , 418
U. S., at 370 (White, J., dissenting); Rosenbloom v. Metromedia, Inc ., 403 U.S.
29 , 62 (1971) (Harlan, J., dissenting); id ., at 78
(Marshall, J., dissenting); Rosenblatt v. Baer , 383 U.S.
75 , 92 (1966) (Stewart, J., concurring); see also E. Kagan, A
Libel Story: Sullivan Then and Now, 18 L. & Soc. Inquiry
197, 207 (1993); J. Lewis & B. Ottley, New York Times v. Sullivan at 50, 64 DePaul L. Rev. 1, 35–36 (2014)
(collecting statements from Justice Scalia); cf. Tah v. Global Witness Publishing, Inc ., 991 F.3d 231, 251–256 (CADC
2021) (Silberman, J., dissenting in part) (questioning the
doctrine). It is thus unfortunate that the majority chooses not
only to prominently and uncritically invoke New York Times ,
but also to extend its flawed, policy-driven First Amendment
analysis to true threats, a separate area of this Court’s
jurisprudence. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–138

															_________________

															BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO

															on writ of certiorari to the court of appeals
of colorado

															[June 27, 2023]

															Justice Barrett, with whom Justice Thomas
joins, dissenting.

															Billy Counterman was convicted under a Colorado
law that prohibits true threats. As everyone agrees, the statute
requires that the speaker understand the meaning of his words. Ante , at 4, n. 1. The question is what more the First
Amendment requires. Colorado maintains that an objective standard is enough—that is, the government must show that a
reasonable person would regard the statement as a threat of
violence. Counterman, however, argues that the First Amendment
requires a subjective test—that is, the speaker himself must
intend or know the threatening nature of the statement.

															It should be easy to choose between these
positions. True threats do not enjoy First Amendment protection,
and nearly every other category of unprotected speech may be
restricted using an objective standard. Nonetheless, the Court
adopts a subjective standard, though not quite the one advanced by
Counterman. The Court holds that speakers must recklessly disregard
the threatening nature of their speech to lose constitutional
protection. Because this unjustifiably grants true threats
preferential treatment, I respectfully dissent.

															I

															Since the founding, the First Amendment has
allowed the government to regulate certain “areas of speech”
“because of their constitutionally proscribable content.” R. A. V. v. St. Paul , 505 U.S.
377 , 382–383 (1992) (emphasis deleted). This includes true
threats, which are “serious expression[s] of an intent to commit an
act of unlawful violence to a particular individual or group of
individuals.” Virginia v. Black , 538 U.S.
343 , 359 (2003); see also R. A. V. , 505
U. S., at 388 (“[T]hreats of violence are outside the First
Amendment”). True threats carry little value and impose great cost.
See Chaplinsky v. New Hampshire , 315 U.S.
568 , 572 (1942) (“[A]ny benefit that may be derived from [true
threats] is clearly outweighed by the social interest in order and
morality”). “[B]y their very utterance,” true threats “inflict
injury.” Ibid. They provoke “the fear of violence,” create
“disruption,” give rise to “the possibility that the threatened
violence will occur”—and the list goes on. Black , 538 U. S.,
at 360 (internal quotation marks omitted).[ 1 ]

															The nature of a true threat points to an
objective test for determining the scope of First Amendment
protection: Neither its “social value” nor its potential for
“injury” depends on the speaker’s subjective intent. Chaplinsky , 315 U. S., at 572. They can relate, of
course—a speaker who does not intend to threaten is less likely to
utter a statement that could be taken that way. But the
Constitution ultimately declines to protect true threats for
objective reasons, not subjective ones. So an objective test
“complements the explanation for excluding threats of violence from
First Amendment protection in the first place.” United
States v. Jeffries , 692 F.3d 473, 480 (CA6 2012).

															II

															The Court agrees that “[t]he existence of a
threat depends not on ‘the mental state of the author,’ but on
‘what the statement conveys’ to the person on the other end.” Ante , at 6. And it acknowledges that “[w]hen the statement
is understood as a true threat, all the harms that have long made
threats unprotected naturally follow.” Ibid. Nonetheless,
the Court holds Colorado’s statute unconstitutional. Why? Because
the Court installs a prophylactic buffer zone to avoid chilling
protected speech—a buffer zone that protects true threats unless
the speaker “consciously disregarded a substantial risk that his
communications would be viewed as threatening violence.” Ante , at 1, 4–5. That reasoning is flawed.

															A

															The Court’s first error is awarding true
threats “pride of place among unprotected speech.” Elonis v. United States , 575 U.S. 723, 767 (2015) (Thomas, J.,
dissenting). We have held that nearly every category of unprotected
speech may be regulated using an objective test. In concluding
otherwise, the Court neglects certain cases and misreads
others.

															Start with fighting words—a category of
unprotected speech that the Court skips past. Fighting words are
“personally abusive epithets” that are “inherently likely to
provoke violent reaction.” Cohen v. California , 403 U.S.
15 , 20 (1971). Under our precedent, legislatures may regulate
fighting words even when the speaker does not intend to provoke the
listener (or does not recklessly disregard that possibility). Chaplinsky , 315 U. S., at 572–573 (rejecting First
Amendment challenge to a state law punishing “fighting words”
according to a reasonable-person standard); Cantwell v. Connecticut , 310 U.S.
296 , 309–310 (1940) (statements unprotected when they are
“likely to provoke violence and disturbance of good order, even
though no such eventuality be intended”). Instead, we ask only
whether “the ordinary citizen,” using her “common knowledge,” would
reasonably understand the statement as a “direct personal insult.” Cohen , 403 U. S., at 20; see also Texas v. Johnson , 491 U.S.
397 , 409 (1989).

															The Court similarly overlooks the category of
“false, deceptive, or misleading” commercial speech. Zauderer v. Office of Disciplinary Counsel of Supreme
Court of Ohio , 471 U.S.
626 , 638 (1985); In re R. M. J. , 455 U.S.
191 , 203 (1982) (“Truthful advertising . . . is
entitled to the protections of the First Amendment,” but
“[m]isleading advertising may be prohibited entirely”); Ibanez v. Florida Dept. of Business and Professional
Regulation , Bd. of Accountancy , 512
U.S. 136 , 142 (1994) (“[F]alse, deceptive, or misleading
commercial speech may be banned”). Here, too, our cases suggest
that First Amendment protection depends on objective falsity rather
than the speaker’s intention. See In re R. M. J. ,
455 U. S., at 202 (“[R]egulation—and imposition of
discipline—are permissible where the particular advertising is inherently likely to deceive or where the record indicates
that a particular form or method of advertising has in fact been
deceptive ” (emphasis added)); see also Milavetz , Gallop & Milavetz , P. A. v. United
States , 559 U.S.
229 , 250–253 (2010). Thus, the government is “free to prevent
the dissemination of commercial speech that is false, deceptive, or
misleading,” without regard to whether the speaker knew that the
recipient would be deceived or misled. Zauderer , 471
U. S., at 638.

															Or take obscenity, which we have long held is
“not protected by the freedoms of speech and press.” Roth v. United States , 354 U.S.
476 , 481 (1957). Speech qualifies as obscene if the
“ ‘average person, applying contemporary community
standards,’ ” would conclude that “the work, taken as a whole,
appeals to the prurient interest.” Miller v. California , 413 U.S.
15 , 24 (1973). The jury must also make an objective judgment
about whether the speech “depicts or describes” sexual conduct “in
a patently offensive way,” and whether it “lacks serious literary,
artistic, political, or scientific value.” Ibid. The
speaker’s “ ‘belief as to the obscenity or non-obscenity of
the material is irrelevant.’ ” Hamling v. United
States , 418 U.S.
87 , 120–121 (1974). So long as the defendant has “knowledge of
the contents of the materials,” her speech may be constitutionally
regulated. Id. , at 123. An objective, reasonable-person
standard applies.

															In an effort to bolster its position, the Court
floats a different standard for obscenity laws, asserting that “the
First Amendment demands proof of a defendant’s mindset to make out
an obscenity case.” Ante , at 8. By “mindset,” the Court
apparently means that the defendant must have some awareness that
an average person would consider the materials obscene. But the
Court draws this conclusion from cases rejecting a strict
liability standard—for example, we have held that the
proprietor of a bookstore cannot be liable for possessing an
obscene book unless he knew what was in it. Smith v. California , 361 U.S.
147 , 149, 155 (1959); Mishkin v. New York , 383 U.S.
502 , 510–512 (1966); see also Ginsberg v. New
York , 390 U.S.
629 , 643–644 (1968).[ 2 ]
Knowing what the material depicts is not the same as knowing how
the average person would react to it—just as there is an important
difference between Counterman’s knowledge of what his words meant
and his knowledge of how they would be perceived. Though the Court
conflates the two, our obscenity cases have repeatedly refused to
require the latter as a matter of constitutional law. Hamling , 418 U. S., at 120–123; Rosen v. United States , 161 U.S.
29 , 41–42 (1896). So obscenity doctrine does not help
Counterman.

															The Court leans hardest on defamation law, but
its argument depends on a single, cherry-picked strand of the
doctrine. Yes, New York Times Co. v. Sullivan requires public figures and public officials to show “actual
malice” on a defamation claim, and we have defined “actual malice”
as “knowledge that [the statement] was false” or “reckless
disregard of whether it was false or not.” 376
U.S. 254 , 279–280 (1964). But that is not the full story. A
private person need only satisfy an objective standard to recover
actual damages for defamation. Gertz v. Robert Welch , Inc. , 418 U.S.
323 , 347–350 (1974). And if the defamatory speech does not
involve a matter of public concern, she may recover punitive
damages with the same showing. Dun & Bradstreet , Inc. v. Greenmoss Builders , Inc. , 472 U.S.
749 , 760–761 (1985) (plurality opinion). We have justified that
distinction on the ground that public-figure defamation claims may
deter “would-be critics of official conduct . . . from
voicing their criticism,” which would “dampe[n] the vigor and limit
the variety of public debate.” Sullivan , 376 U. S., at
279. Not only that, but “the state interest in protecting” public
figures is weaker, since they tend to “enjoy significantly greater
access to the channels of effective communication and hence have a
more realistic opportunity to counteract false statements.” Gertz , 418 U. S., at 344. So, despite what the Court
says, Sullivan does not stand for the broad proposition that
the First Amendment “demand[s] a subjective mental-state
requirement.” Ante , at 6. Instead, it simply raises the bar
for borderline unprotected speech with high social value (because
of its proximity to public discourse) and low potential for injury
(because public figures can engage in counterspeech). Sullivan ’s rationale does not justify a
heightened mens rea for true threats. Because true threats
are not typically proximate to debate on matters of public concern,
the Court’s newly erected buffer zone does not serve the end of
protecting heated political commentary. Nor can public figures use
counterspeech in the public square to protect themselves from
serious threats of physical violence. And perversely, private
individuals now have less protection from true threats than from
defamation—even though they presumably value their lives more than
their reputations. See Gertz , 418 U. S., at 347–350.
The Court has therefore extended Sullivan in a way that
makes no sense on Sullivan ’s own terms.

															I will give the Court this much: Speakers must
specifically intend to incite violence before they lose First
Amendment protection. Brandenburg v. Ohio , 395 U.S.
444 , 447 (1969) ( per curiam ) (defining incitement
as “advocacy . . . directed to inciting or producing
imminent lawless action and likely to incite or produce such
action”); see also Hess v. Indiana , 414 U.S.
105 , 108–109 (1973) ( per curiam ). Once more, however,
our precedent itself explains the difference. Incitement, as a form
of “advocacy,” often arises in the political arena. See Brandenburg , 395 U. S., at 447 (Ku Klux Klan rally held
to plan a “ ‘marc[h] on Congress’ ”); Hess , 414
U. S., at 106 (antiwar demonstration); Abrams v. United States , 250 U.S.
616 , 620 (1919) (pamphlets about the President’s
“ ‘shameful, cowardly silence about the intervention in
Russia’ ”). A specific intent requirement helps draw the line
between incitement and “political rhetoric lying at the core of the
First Amendment.” NAACP v. Claiborne Hardware Co. , 458 U.S.
886 , 926–927 (1982). The Court does not contend that targeted
threats and political commentary share a similarly close
relationship.

															In sum, our First Amendment precedent does not
set a “baseline ban on an objective standard.” Ante , at 10.
Precedent does more than allow an objective test for true threats;
on balance, it affirmatively supports one.

															B

															The Court’s analysis also gives short shrift
to how an objective test works in practice. Two key features of
true threats already guard against the risk of silencing protected
speech. Thus, there is no need to go further and adopt the Court’s
heightened standard.

															First, only a very narrow class of statements
satisfies the definition of a true threat. To make a true threat,
the speaker must express “an intent to commit an act of unlawful
violence .” Black , 538 U. S., at 359 (emphasis
added). Speech that is merely “offensive,” “ ‘poorly
chosen,’ ” or “unpopular” does not qualify. Brief for
Petitioner 31, 36, 42. The statement must also threaten violence
“to a particular individual or group of individuals”—not just in
general. Black , 538 U. S., at 359. These tight
guardrails distinguish true threats from public-figure defamation,
the model for the Court’s rule. While defamatory statements can
cover an infinite number of topics, true threats target one:
unlawful violence.

															Second, the statement must be deemed threatening
by a reasonable listener who is familiar with the “entire factual
context” in which the statement occurs. State v. Taveras , 342 Conn. 563, 572, 271 A.3d 123, 129 (2022). This
inquiry captures (among other things) the speaker’s tone, the
audience, the medium for the communication, and the broader
exchange in which the statement occurs.[ 3 ] Each consideration helps weed out protected speech from
true threats.

															Our decision in Black illustrates the
point. There, the Court considered a Virginia law that prohibited
cross burning “ ‘with the intent of intimidating any person or
group of persons.’ ” 538 U. S., at 348. Notably, the
statute included a presumption: “ ‘Any such burning of a cross
shall be prima facie evidence of an intent to intimidate.’ ” Ibid. After three men were convicted under the statute, they
challenged it as facially unconstitutional. We upheld the general
prohibition on cross burning, concluding that the First Amendment
allows the government to ban “a particular type of threat.” Id. , at 362–363. A plurality then went on to address the
statutory presumption. While cross burning “may mean that a person
is engaging in constitutionally proscribable intimidation,” the
plurality reasoned, the act is not monolithic. Id. , at 365.
Cross burning could be directed “at an individual” or “at a group
of like-minded believers”; it could be done “on a neighbor’s lawn”
or “at a public rally”; it could be done with the property owner’s
“permission” or without it. Id. , at 366 . The
presumption “blur[red] the line” between these different situations
and “ignore[d] all of the contextual factors that are necessary to
decide whether a particular cross burning” was covered by the
statute or not.[ 4 ] Id. ,
at 365, 367. Thus, the presumption was unconstitutionally
overbroad.

															The Black plurality’s reasoning can be
boiled down to the following insight: When context is ignored, true
threats cannot be reliably distinguished from protected speech. The
reverse also holds: When context is properly considered,
constitutional concerns abate. See, e.g. , Watts v. United States , 394 U.S.
705 , 708 (1969) ( per curiam ) (concluding that a
statement was “political hyperbole” instead of a true threat based
on “context,” “the expressly conditional nature of the statement,”
and the “reaction of the listeners”).

															One more point: Many States have long had
statutes like Colorado’s on the books. See Brief for Illinois et
al. as Amici Curiae 16–17. Before we took this case, the
vast majority of Courts of Appeals and state high courts had upheld
these statutes as constitutional. So objective tests are
effectively the status quo today, yet Counterman still struggles to
identify past prosecutions that came close to infringing on
protected speech. Tr. of Oral Arg. 28–30. The silence is
telling.

															C

															So is the silence in the historical record.
Since 1791, true threats have been excluded from the “speech”
protected by the First Amendment. R. A.V. , 505
U. S., at 382–383, 388. If Counterman could show that a
subjective requirement has been inherent in the definition of “true
threat” since the founding, he would have a compelling case. But
Counterman cannot make that showing.

															For starters, he produces no evidence directly
addressing the meaning of the First Amendment—nothing from state
ratifying conventions, political commentary, or even early debates
about efforts to regulate threats in ways that might threaten
speech. That is not surprising at the federal level, because the
Federal Government did not prohibit threats until the early 20th
century. Elonis , 575 U. S., at 760 (Thomas, J.,
dissenting). Some States, however, both regulated threats and
guaranteed the right to free speech in their own constitutions. Id. , at 760–761 . Yet even at the state level, there
was apparently no discussion about the implications of these
statutes for the constitutional right.

															That void notwithstanding, the state threat
statutes are the evidence on which Counterman seizes. He argues
that they imposed a subjective mens rea , demonstrating that
the founding generation thought that threats could be punished on
no less. But as Justice Thomas has already discussed in detail,
this is incorrect. See id. , at 760–765. Rather than a
subjective mens rea , these statutes used an objective
standard resembling Colorado’s.

															Even if they did require a heightened mens
rea , though, these statutes would not carry the day for
Counterman. The enactment of a statute against the backdrop of a
free speech guarantee tends to show that the legislature thought
the statute consistent with that guarantee. Thus, if the question
were whether such statutes violated the First Amendment,
their existence would be evidence to the contrary. But the question
here is whether a subjective intent requirement is the
constitutional floor. And because the legislature is always free to
exceed the floor, the enactment of legislation does not necessarily
reflect the legislature’s view of the constitutional minimum.

															At the end of the day, then, the best historical
case for Counterman does not add up to much. He is plainly not
asking the Court to enforce a historically sanctioned rule, but
rather to fashion a new one.

															D

															Even if a subjective test had a historical
pedigree, the Court’s chosen standard of recklessness certainly
does not. Where does recklessness come from? It was not raised by
the parties. Only the Solicitor General noted this possibility—and
briefly at that. Brief for United States as Amicus Curiae 28–31. Nor did the courts below address recklessness; indeed, very
few courts (of the many that have taken up the question) have
settled on recklessness as the constitutional floor for true
threats. See, e.g. , State v. Mrozinski , 971
N.W.2d 233, 243–245 (Minn. 2022); In re
J. J. M. , 265 A.3d 246, 269–270 (Pa. 2021). Still,
the Court adopts recklessness as “the right path forward.” Ante , at 11. Its rationale is, at best, unclear.

															The Court begins by acknowledging the
“ ‘competing value[s]’ ” of “free expression” on one
hand, and “profound harms . . . to both individuals and
society” on the other. Ante , at 11–12. But why do these
considerations point to recklessness? A knowledge or purpose
standard would allow more free expression, so maybe we should go
higher. See ante , at 16 (Sotomayor, J., concurring in part
and concurring in judgment) (“chilling concerns only further
buttress the conclusion that true threats should be limited to
intentionally threatening speech”). An objective standard would
cause less harm to victims, so perhaps lower is better. The optimal
balance strikes me as a question best left to the legislature,
which could calibrate the mens rea to the circumstance—for
example, higher for the criminal context and lower for the civil.
See Brief for Illinois et al. as Amici Curiae 28–30
(States “have a range of policy reasons for using subjective
standards for penalizing threats of violence” and many “choose to
require proof of a speaker’s subjective mental state” in some
situations but not others).

															Nor does our First Amendment precedent buttress
the Court’s preferred standard. A recklessness requirement
currently applies only to public-figure defamation claims.
Incitement to violence calls for more. Fighting words,
private-figure defamation, false commercial speech, and obscenity
require less. I fail to see why, of all these categories of
unprotected speech, public-figure defamation is the best analog for
true threats. The reality is that recklessness is not grounded in
law, but in a Goldilocks judgment: Recklessness is not too much,
not too little, but instead “just right.”

															III

															Some may find Colorado’s statute harsh, and
the Court’s decision seems driven in no small part by the heavy
hammer of criminal punishment. See ante , at 12; ante ,
at 14–15, 20–21 (opinion of Sotomayor, J.). While an objective test
is “a familiar feature of civil liability in tort law,” the
“ ‘conventional requirement for criminal conduct’ ” is
“ ‘ awareness of some wrongdoing.’ ” Elonis ,
575 U. S., at 737–738. In keeping with this convention, we
generally presume that “federal criminal statutes that are silent
on the required mental state” nonetheless impose the “ mens
rea which is necessary to separate wrongful conduct from
otherwise innocent conduct.” Id. , at 736 (internal quotation
marks omitted). That is why we rejected an objective standard for
the federal threat prohibition, 18 U. S. C. §875(c). 575
U. S., at 737–739. It is “the threatening nature of the
communication” that “makes the conduct ‘wrongful’ ”; thus, the
statute is best interpreted to require that the defendant be aware
of the impact of his speech. Id. , at 737.

															But this case is about the scope of the First
Amendment, not the interpretation of a criminal statute.
Accordingly, the Court’s holding affects the civil consequences for true threats just as much as it restricts criminal
liability. And the civil context underscores the danger of adopting
a Sullivan -style buffer zone for true threats.

															Consider, for example, threat victims who seek
restraining orders to protect themselves from their harassers. See, e.g. , United States v. Elonis , 841 F.3d 589,
593 (CA3 2016) (defendant’s wife sought a restraining order after
he wrote on Facebook, “I’m not going to rest until your body is a
mess, soaked in blood and dying from all the little cuts”). Civil
orders can also keep individuals away from particular geographic
areas. Imagine someone who threatens to bomb an airport, State v. Johnston , 156 Wash. 2d 355, 358–359, 127 P.3d 707 , 708–709 (2006), or “shoot up [a] courthous[e],” State v. Draskovich , 2017 S. D. 76, ¶3, 904
N.W.2d 759, 761. The speaker might well end up barred from the
location in question—for good reason. Yet after today, such orders
cannot be obtained without proof—not necessarily easy to
secure—that the person who issued the threat anticipated that it
would elicit fear. See Tr. of Oral Arg. 92–93.

															The government can also opt to counteract true
threats by means of civil enforcement actions. For instance, 18
U. S. C. §248 prohibits “threat[s] of force” against any
person “obtaining or providing reproductive health services” or
“seeking to exercise the First Amendment right of religious freedom
at a place of religious worship.” The statute imposes a range of
civil penalties, and it allows enforcement suits by both private
persons and government officials. See, e.g. , United
States v. Dillard , 795 F.3d 1191, 1196–1197 (CA10 2015)
(Government brought §248 action after defendant warned a health
provider, “[y]ou will be checking under your car everyday—because
maybe today is the day someone places an explosive under it”); McCullen v. Coakley , 573 U.S.
464 , 491 (2014) (noting that several States have similar laws).
After today, these civil enforcement actions face a higher
constitutional hurdle.

															In addition, employers and school administrators
often discipline individuals who make true threats. Consider the
student who was expelled after “draft[ing] two violent, misogynic,
and obscenity-laden rants expressing a desire to molest, rape, and
murder” his ex-girlfriend. Doe v. Pulaski Cty. Special
School Dist. , 306 F.3d 616 , 619 (CA8 2002) (en banc). Or the one who was
suspended after “ ‘talking about taking a gun to school’ to
‘shoot everyone he hates.’ ” D. J. M. v. Hannibal Public School Dist. No. 60 , 647 F.3d 754, 758 (CA8
2011); Lovell v. Poway Unified School District , 90 F.3d 367 , 369, 372–373 (CA9 1996) (similar); Haughwout v. Tordenti , 332 Conn. 559, 561–562, 211
A.3d 1, 3–4 (2019) (similar). True threats can also be expressed by
a parent, a teacher, or an employee in another context altogether.
See, e.g. , Taveras , 342 Conn., at 567–569, 578, 271
A. 3d, at 126–128, 133 (parent); Smith v. New York
City Dept. of Ed. , 109 App. Div. 3d 701, 702–703, 972 N.Y.S.2d
221, 222 (2013) (teacher); Diggs v. St. Louis ,
613 S.W.3d 858, 862, 864 (Mo. App. 2020) (correctional
officer).

															Barring some reason why the speech receives
lesser constitutional protection, e.g. , Mahanoy Area
School Dist. v. B. L. , 594 U. S. ___, ___–___
(2021) (slip op., at 4–5), the Court’s new rule applies to all of
these situations. That can make all the difference in some cases. A
delusional speaker may lack awareness of the threatening nature of
her speech; a devious speaker may strategically disclaim such
awareness; and a lucky speaker may leave behind no evidence of
mental state for the government to use against her. The Court’s
decision thus sweeps much further than it lets on.

															*  *  *

															The bottom line is this: Counterman
communicated true threats, which, “everyone agrees, lie outside the
bounds of the First Amendment’s protection.” Ante , at 4. He
knew what the words meant. Those threats caused the victim to fear
for her life, and they “upended her daily existence.” Ante ,
at 2. Nonetheless, the Court concludes that Counterman can prevail
on a First Amendment defense. Nothing in the Constitution compels
that result. I respectfully dissent. Notes 1 Indeed, the Colorado
Legislature considered these very harms when it enacted the statute
at issue here. The statutory findings explain that stalking,
harassment, and threats have “an immediate and long-lasting impact
on quality of life as well as risks to security and safety of the
victim and persons close to the victim.” Colo. Rev. Stat.
§§18–3–601(1)(f), 18–3–602(1) (2022). So the legislature passed the
statute to “encourag[e] and authoriz[e] effective intervention”
before the covered conduct could “escalate into behavior that has
even more serious consequences.” §18–3–601(2). 2 The Court also cites Elonis v. United States , ante , at 8, 9,
n. 4, which Counterman argues puts a “gloss” on obscenity
doctrine, Tr. of Oral Arg. 6–7. While Elonis briefly
discusses the necessary mens rea for a conviction under a
federal obscenity statute, it does so only in dicta. 575 U.S. 723,
739–740 (2015). Elonis does not alter the doctrinal
framework for assessing the constitutionality of obscenity laws:
That case involves true threats, not obscenity, and it interprets a
federal statute, not the Constitution. 3 Colorado’s test provides
a good example. Juries must apply the following nonexhaustive
factors to determine whether a statement is a true threat: “(1) the
statement’s role in a broader exchange, if any, including
surrounding events; (2) the medium or platform through which the
statement was communicated, including any distinctive conventions
or architectural features; (3) the manner in which the statement
was conveyed ( e.g. , anonymously or not, privately or
publicly); (4) the relationship between the speaker and
recipient(s); and (5) the subjective reaction of the statement’s
intended or foreseeable recipient(s).” People in the Interest of
R. D. , 464 P.3d 717, 721–722 (Colo. 2020). 4 As Justice Sotomayor
emphasizes, ante , at 10, n. 4, the plurality said that
context informs “whether a particular cross burning is intended
to intimidate ,” 538 U. S., at 367 (emphasis added). But
this was a reference to the statutory requirements for a
conviction, not the constitutional requirements—the Virginia
statute covered only threats made “ ‘with the intent of
intimidating any person or group of persons.’ ” Id. , at
348. At no point did the Court hold that the First Amendment
demands specific intent; on the contrary, it recognized that a
statement made “with the intent of placing the victim in fear of
bodily harm or death” is “ a type of true threat.” Id. , at 360 (emphasis added).

Summary: The Supreme Court ruled that true threats of violence are not protected by the First Amendment and are punishable as crimes. In the case of Billy Counterman, who sent threatening messages to a local singer, the Court held that the First Amendment requires proof that the defendant had a subjective understanding of the threatening nature of his statements, with a mental state of recklessness being sufficient. The Court also emphasized the impact of such threats on the victim, noting that they caused fear and significantly disrupted her life. However, Justice Sotomayor dissented, arguing that the majority's decision allowed Counterman to prevail on a First Amendment defense despite communicating true threats.