SUPREME COURT OF THE UNITED STATES
BILLY RAYMOND COUNTERMAN, PETITIONER v.
on writ of certiorari to the court of appeals
[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
, 559 U.S.
, 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.
, 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
, 481 U.S.
, 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
is amply sufficient. Where I part ways with the Court is that I
would not reach the distinct and more complex question whether a
of recklessness is sufficient for true-threats
prosecutions generally. Further, requiring nothing more than a
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.
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
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.
v. United States
, 394 U.S.
, 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
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.
v. Forum for
Academic and Institutional Rights, Inc.
, 547 U.S.
, 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”
, at 1. Repeatedly forcing intrusive
communications directly into the personal life of “an
unwilling recipient” also enjoys less protection.
v. Post Office Dept.
, 738 (1970). Finally, while there is considerable risk
with a single intemperate utterance that a speaker will
“accidentally or erroneously incur liability,”
, 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.
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
U. S., at 708. “It might be tempting to dismiss”
seemingly low-value speech “as unworthy of . . .
robust First Amendment protections.” Mahanoy Area School
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.”
, 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
, 347–348 (2003); hateful rhetoric in protests of
the funerals of fallen soldiers, Snyder
, 448–449, 458 (2011); and computer-generated images
of child pornography, Ashcroft
v. Free Speech
, 535 U.S.
, 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
, 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
, 560 U.S.
, 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
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
, 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
U. S., at 348–349 (Ku Klux Klan rally); Watts
394 U. S., at 707 (antiwar protest); Rogers
, 422 U.S.
, 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
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
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
, 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
, 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,
, 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
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,
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.
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
, at 6, and the lead dissent agrees,
, 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
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
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
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
, 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 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
plainly sets out a conception of true
threats as including a mens rea
, the Court confronted the
constitutionality of a Virginia statute that prohibited burning a
cross with intent to intimidate. Only part of the decision in
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.
, 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
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
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
, 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.’ ”
. The plurality and Justice Scalia only parted ways as
to whether to hold that the statute was “facially
, 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.
380 (opinion of Scalia, J.) (emphasis added).
The through-line is not hard to discern. First,
unprotected true threats include a subjective mens rea
., 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
, 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
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
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
359, the Court in Black
echoed the traditional understanding
of threats. Historically, threat crimes covered the same kind of
subjectively threatening speech Black
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,
, 1796 N. J. Laws §57, p. 108. Colorado and
the United States admit that this core category of threat crimes
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
Consistent with this, defendants were convicted
of “knowingly, wilfully, and feloniously” sending
threatening letters. Rex
, 1 Mood. 428, 168
Eng. Rep. 1330 (1835); Rex
, Russ. & Ry.
484, 168 Eng. Rep. 910 (1822) (indictment for “knowingly,
unlawfully, wickedly, and feloniously” sending a threatening
letter); see also King
, 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
, 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
5 Cox 233, 235 (Crim. Cas. 1851); see also King
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
, 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
particular letter.” State
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
, 140 Ky.
628, 631, 131 S.W. 506, 507–508 (1910) (letter must be
“calculated to alarm, disturb, intimidate, or injure”);
see also State
, 90 Mo. 507, 512, 2 S.W.
790, 792 (1887) (jury instruction requiring that
“ ‘defendant intended to
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
Put together, Black
and the history
point to an intent requirement. When Black
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.
, 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.
388–391 (Thomas, J., dissenting). Recklessness, which turns
so heavily on an objective person standard, would not have been
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.
, 342 U.S.
, 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.
, 445 (1978); see also Tison
, 481 U. S., at 150;
v. United States
, 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.
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
The Court, eschewing Black
instead reaches its result based on the need for a “buffer
zone” drawn by analogy to other categories of unprotected
, 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
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
, 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.
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
“ intended to produce, and  likely to produce,
, 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
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.
, 538 U. S., at 348–349; Watts
394 U. S., at 707 (antiwar protest); Rogers
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
Claiborne Hardware Co.
, 458 U.S.
(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
, 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
., 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.”
, 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
, 395 U.S.
(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.
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
, 418 U.S.
, 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
v. American Civil Liberties
, 521 U.S.
, 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
of filth . . . is exorcised.”
, 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;
, 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
., 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.
, 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
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.
, 376 U.S.
, 279–280 (1964).
Yet while civil defamation may be “the
best known and best theorized example” of unprotected speech,
, 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
standard, which covers “only those false
statements made with a high degree of awareness of their probable
, 379 U.S.
, 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.”
, 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
required to criminalize other speech.
If the Court were correct that the
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
, 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
, 491 U.S.
, 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
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
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.
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
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.
, 339 U.S.
, 411 (1950).
* * *
I agree with the Court’s conclusion that
the First Amendment requires a subjective mens rea
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
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.