COUNTERMAN v. COLORADO
No. 22-138
SUPREME COURT OF THE UNITED STATES
June 27, 2023
600 U.S. 66
KAGAN, J.
CERTIORARI TO THE COURT OF APPEALS OF COLORADO
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. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged violent harm befalling her. Counterman‘s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined social engagements, and canceled some of her performances. C. W. eventually contacted the authorities. The State charged Counterman under a Colorado 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.”
Held: The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness. Pp. 72-83.
(a) The First Amendment permits restrictions upon the content of speech in a few limited areas. Among these historic and traditional categories of unprotected expression is true threats. True threats are “serious expression[s]” conveying that a speaker means to “commit an act of unlawful violence.” Virginia v. Black, 538 U. S. 343, 359. 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 receiving end. Elonis v. United States, 575 U. S. 723, 733. Yet the First Amendment may still demand a subjective mental-state requirement shielding some
(b) In this context, a recklessness standard—i. e., a showing that a person “consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another,” Voisine v. United States, 579 U. S. 686, 691—is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats—with diminished returns for protected expression. Using a recklessness standard also fits with this Court‘s defamation decisions, which adopted a recklessness rule more than a half-century ago. The Court sees no reason to offer greater insulation to threats than to defamation. While this Court‘s incitement decisions demand more, the reason for that demand—the need to protect from legal sanction the political advocacy a hair‘s-breadth away from incitement—is not present here. For true threats, recklessness strikes the right balance, offering “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. Pp. 78-82.
(c) The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman‘s part of his statements’ threatening character. That is a violation of the First Amendment. Pp. 82-83.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, KAVANAUGH, and JACKSON, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined as to Parts I, II, III-A, and III-B, post, p. 83. THOMAS, J., filed a dissenting opinion, post, p. 105. BARRETT, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 106.
John P. Elwood argued the cause for petitioner. With him on the briefs were Anthony J. Franze, Kolya D. Glick, William T. Sharon, and Mackenzie Shields.
Philip J. Weiser, Attorney General of Colorado, argued the cause for respondent. With him on the brief were Eric R. Olson, Solicitor General, Jillian J. Price, Deputy Attorney General, Joseph G. Michaels, Assistant Solicitor General, Helen Norton, Special Assistant Attorney General, and Talia Kraemer, Assistant Attorney General.
Deputy Solicitor General Feigin argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Prelogar, Assistant Attorney General Polite, Nicole Frazer Reaves, and Paul T. Crane.*
*Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Brian M. Hauss, Ben Wizner, David D. Cole, Mark Silverstein, Sara R. Neel, David A. Schulz, Barbara E. Bergman, and Eric M. Freedman; for the Cato Institute et al. by Jay R. Schweikert and John W. Whitehead; for the Electronic Frontier Foundation et al. by David Greene; for the Reporters Committee for Freedom of the Press by Bruce D. Brown; and for Elena Cordonean et al. by Norman M. Garland and Michael M. Epstein, both pro se.
Briefs of amici curiae urging affirmance were filed for the State of Illinois et al. by Kwame Raoul, Attorney General of Illinois, Jane Elinor Notz, Solicitor General, Alex Hemmer, Deputy Solicitor General, Priyanka Gupta, Assistant Attorney General, and Patrick J. Griffin, Chief State‘s Attorney of Connecticut, and by the Attorneys General for their respective jurisdictions as follows: Treg Taylor of Alaska, Kris Mayes of Arizona, Kathleen Jennings of Delaware, Brian L. Schwalb of the District of Columbia, Anne E. Lopez of Hawaii, Brenna Bird of Iowa, Aaron
Briefs of amici curiae were filed for the Alliance Defending Freedom by John J. Bursch, Tyson C. Langhofer, and Travis C. Barham; for the Foundation for Individual Rights and Expression by Darpana M. Sheth; for Human Rights for Kids by John H. Fleming, Suzanne S. La Pierre, James Dold, Adam C. Pollet, Joel E. Hoffman, and Daniel Morris; and for Jack Jordan by Mr. Jordan, pro se.
COUNTERMAN v. COLORADO
No. 22-138
SUPREME COURT OF THE UNITED STATES
June 27, 2023
600 U.S. 66
KAGAN, J.
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.
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.”
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
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
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
“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
That kind of “strategic protection” features in our precedent concerning the most prominent categories of historically unprotected speech. Gertz, 418 U. S., at 342. Defama
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 charac
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
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
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
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 75-76. 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
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 76. 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
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 71-72. 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.
It is so ordered.
COUNTERMAN v. COLORADO
No. 22-138
SUPREME COURT OF THE UNITED STATES
June 27, 2023
600 U.S. 66
SOTOMAYOR, J.
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
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
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
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
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
II
Lest there be any doubt, the
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]
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). “[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 unfortu
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 85–86.
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 requirement 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
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
Thus, the Court must first ask whether there is a longstanding 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
A
A natural place to begin, one might think, would be with this Court‘s most recent decision involving the
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 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
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
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
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 Supreme 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.
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 v. Arizona, 481 U. S. 137, 150 (1987). 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) (recklessness requires awareness of a level of risk that “need not come anywhere close to a likeli
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 72–73. 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 78, 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
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
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 regard 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
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 under
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 82, 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 86–89.9
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 pri
Yet while civil defamation may be “the best known and best theorized example” of unprotected speech, ante, at 76, 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). Within that potentially broad range, Sullivan provides a more definite and demanding level of risk, reflecting the
4
This Court‘s various frameworks for unprotected speech do not speak with one voice, as perhaps befits the
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
* * *
I agree with the Court‘s conclusion that the
Counterman v. Colorado
June 27, 2023
600 U.S. 66
THOMAS, J., dissenting
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). 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.). Thus, as I have previously noted, “[w]e should
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); 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.
Counterman v. Colorado
June 27, 2023
600 U.S. 66
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 72, 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
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 74. 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 69, 72–73. 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
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
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 76. 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); Mish
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 voic-
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
In sum, our First Amendment precedent does not set a “ban on an objective standard.” Ante, at 78. 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
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
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
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.
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 79. 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 79–80. 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 97 (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 pol-
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 80; ante, at 96–97, 101–102 (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,
But this case is about the scope of the First Amendment, not the interpretation of a criminal statute. Accordingly,
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,
Barring some reason why the speech receives lesser constitutional protection, e. g., Mahanoy Area School Dist. v. B. L., 594 U. S. ––– (2021), 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 72. He knew what the words meant. Those threats caused the victim to fear for her life, and they “upended her daily exist-
The attached opinion has been revised to reflect the usual publication and citation style of the United States Reports. The revised pagination makes available the official United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or filed briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:
None