Counterman v. Colorado ( 2023 )

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
COUNTERMAN v. COLORADO
CERTIORARI TO THE COURT OF APPEALS OF COLORADO
No. 22–138. Argued April 19, 2023—Decided June 27, 2023
From 2014 to 2016, petitioner Billy Counterman sent hundreds of Face-
book 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 vio-
lent harm befalling her. Counterman’s messages put C. W. in fear and
upended her daily existence: C. W. stopped walking alone, declined so-
cial engagements, and canceled some of her performances. C. W. even-
tually contacted the authorities. The State charged Counterman un-
der 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.”
Colo. Rev. Stat. §18–3–602(1)(c). 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. Following Colorado law, the trial court rejected that ar-
gument under an objective standard, finding that a reasonable person
would consider the messages threatening. Counterman appealed, ar-
guing that the First Amendment required the State to show not only
that his statements were objectively threatening, but also that he was
aware of their threatening character. The Colorado Court of Appeals
disagreed and affirmed his conviction. The Colorado Supreme Court
denied review.
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. 4–14.
(a) The First Amendment permits restrictions upon the content of
2 COUNTERMAN v. COLORADO
Syllabus
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 Amend-
ment may still demand a subjective mental-state requirement shield-
ing some true threats from liability. That is because bans on speech
have the potential to chill, or deter, speech outside their boundaries.
An important tool to prevent that outcome is to condition liability on
the State’s showing of a culpable mental state. Speiser v. Randall, 357
U. S. 513, 526. That kind of “strategic protection” features in this
Court’s precedent concerning the most prominent categories of unpro-
tected speech. Gertz v. Robert Welch, Inc., 418 U. S. 323, 342. With
regard to defamation, a public figure cannot recover for the injury such
a statement causes unless the speaker acted with “knowledge that it
was false or with reckless disregard of whether it was false or not.”
New York Times Co. v. Sullivan, 376 U. S. 254, 280. The same idea
arises in the law respecting obscenity and incitement to unlawful con-
duct. See, e.g., Hess v. Indiana, 414 U. S. 105, 109; Hamling v. United
States, 418 U. S. 87, 122–123. And that same reasoning counsels in
favor of requiring a subjective element in a true-threats case. A
speaker’s fear of mistaking whether a statement is a threat, fear of the
legal system getting that judgment wrong, and fear of incurring legal
costs all may lead a speaker to swallow words that are in fact not true
threats. Insistence on a subjective element in unprotected-speech
cases, no doubt, has a cost: Even as it lessens chill of protected speech,
it makes prosecution of otherwise proscribable, and often dangerous,
communications harder. But a subjective standard is still required for
true threats, lest prosecutions chill too much protected, non-threaten-
ing expression. Pp. 5–10.
(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 def-
amation. While this Court’s incitement decisions demand more, the
reason for that demand—the need to protect from legal sanction the
Cite as: 600 U. S. ____ (2023) 3
Syllabus
political advocacy a hair’s-breadth away from incitement—is not pre-
sent here. For true threats, recklessness strikes the right balance, of-
fering “enough ‘breathing space’ for protected speech,” without sacri-
ficing too many of the benefits of enforcing laws against true threats.
Elonis, 575 U. S., at 748. Pp. 10–14.
(c) The State prosecuted Counterman in accordance with an objec-
tive standard and did not have to show any awareness on Counter-
man’s part of his statements’ threatening character. That is a viola-
tion of the First Amendment. P. 14.
497 P. 3d 1039, vacated and remanded.
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. THOMAS, J., filed
a dissenting opinion. BARRETT, J., filed a dissenting opinion, in which
THOMAS, J., joined.
Cite as: 600 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–138
_________________
BILLY RAYMOND COUNTERMAN, PETITIONER v.
COLORADO
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
COLORADO
[June 27, 2023]
JUSTICE KAGAN delivered the opinion of the Court.
True threats of violence are outside the bounds of First
Amendment protection and punishable as crimes. Today
we consider a criminal conviction for communications fall-
ing within that historically unprotected category. The
question presented is whether the First Amendment still
requires proof that the defendant had some subjective un-
derstanding 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 con-
sciously disregarded a substantial risk that his communi-
cations would be viewed as threatening violence. The State
need not prove any more demanding form of subjective in-
tent to threaten another.
I
From 2014 to 2016, petitioner Billy Counterman sent
hundreds of Facebook messages to C. W., a local singer and
musician. The two had never met, and C. W. never re-
sponded. 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
2 COUNTERMAN v. COLORADO
Opinion of the Court
(“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 Counter-
man 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 be-
falling 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 fol-
lowing” 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 en-
gagements, 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 communi-
cation 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 dis-
tress.” Colo. Rev. Stat. §18–3–602(1)(c) (2022). The only
evidence the State proposed to introduce at trial were his
Facebook messages.1
——————
1 The statute Counterman was charged with violating is titled a “stalk-
ing” statute and also prohibits “[r]epeatedly follow[ing], approach[ing],
contact[ing], [or] plac[ing] under surveillance” another person. §18–3–
602(1)(c). But the State had no evidence, beyond what Counterman
claimed, that he actually had followed or surveilled C. W. For example,
C. W. had never noticed anything of that kind. So the prosecution based
Cite as: 600 U. S. ____ (2023) 3
Opinion of the Court
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 ‘rea-
sonable 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 state-
ments “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 accord-
ingly 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 re-
quired the State to show that he was aware of the threat-
ening 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 neces-
sary” under the First Amendment to procure a conviction
for threatening communications. Id., at 1046 (quoting
R. D., 464 P. 3d, at 731, n. 21). Using the established objec-
tive standard, the court then approved the trial court’s rul-
ing that Counterman’s messages were “true threats” and so
were not protected by the First Amendment. 497 P. 3d, at
1050. The Colorado Supreme Court denied review.
Courts are divided about (1) whether the First Amend-
ment requires proof of a defendant’s subjective mindset in
——————
its case solely on Counterman’s “[r]epeated[ ] . . . communication[s]” with
C. W. Ibid.
4 COUNTERMAN v. COLORADO
Opinion of the Court
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 state-
ment 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 Col-
orado argues that there is no such requirement. Counter-
man contends that there is one, based mainly on the likeli-
hood that the absence of such a mens rea requirement will
chill protected, non-threatening speech. Counterman’s
view, we decide today, is the more consistent with our prec-
edent. To combat the kind of chill he references, our deci-
sions have often insisted on protecting even some histori-
cally unprotected speech through the adoption of a
subjective mental-state element. We follow the same path
today, holding that the State must prove in true-threats
cases that the defendant had some understanding of his
——————
2 A preliminary clarification may be useful, concerning the difference
between awareness of a communication’s contents and awareness of its
threatening nature. Everyone agrees, again, that the State must prove
the former—and Colorado law appears to hold as much. See Colo. Rev.
Stat. §18–3–602(1)(c); Brief for Respondent 18. So, for example, if a de-
fendant delivers a sealed envelope without knowing that a threatening
letter is inside, he cannot be liable for the communication. So too (though
this common example seems fairly preposterous) if a “foreigner, ignorant
of the English language, who would not know the meaning of the words,”
somehow manages to convey an English-language threat. Elonis v.
United States, 575 U. S. 723, 738 (2015) (internal quotation marks omit-
ted). The question in this case arises when the defendant (unlike in those
hypotheticals) understands the content of the words, but may not grasp
that others would find them threatening. Must he do so, under the First
Amendment, for a true-threats prosecution to succeed?
Cite as: 600 U. S. ____ (2023) 5
Opinion of the Court
statements’ threatening character. The second issue here
concerns what precise mens rea standard suffices for the
First Amendment purpose at issue. Again guided by our
precedent, we hold that a recklessness standard is enough.
Given that a subjective standard here shields speech not
independently entitled to protection—and indeed posing
real dangers—we do not require that the State prove the
defendant had any more specific intent to threaten the vic-
tim.
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] produc-
ing imminent lawless action,” and likely to do so. Branden-
burg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam). An-
other 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—value-
less material “appeal[ing] to the prurient interest” and de-
scribing “sexual conduct” in “a patently offensive way.” Mil-
ler v. California, 413 U. S. 15, 24 (1973). This Court has
“often described [those] historically unprotected categories
of speech as being of such slight social value as a step to
truth that any benefit that may be derived from them is
clearly outweighed by the social interest” in their proscrip-
tion. Stevens, 559 U. S., at 470 (internal quotation marks
omitted; emphasis deleted).
“True threats” of violence is another historically unpro-
tected 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,”
6 COUNTERMAN v. COLORADO
Opinion of the Court
or other statements that when taken in context do not con-
vey 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 men-
tal state of the author,” but on “what the statement con-
veys” to the person on the other end. Ibid. When the state-
ment is understood as a true threat, all the harms that have
long made threats unprotected naturally follow. True
threats subject individuals to “fear of violence” and to the
many kinds of “disruption that fear engenders.” Black, 538
U. S., at 360 (internal quotation marks omitted). The facts
of this case well illustrate how.3
Yet the First Amendment may still demand a subjective
mental-state requirement shielding some true threats from
liability. The reason relates to what is often called a
chilling effect. Prohibitions on speech have the potential to
chill, or deter, speech outside their boundaries. A speaker
may be unsure about the side of a line on which his speech
——————
3 The concurrence relies on Virginia v. Black, 538 U. S. 343 (2003), to
argue that the category of true threats itself incorporates a mens rea el-
ement. See post, at 9–11, 14 (SOTOMAYOR, J., concurring in part and con-
curring in judgment). But that claim is based on a misreading. The
statements the concurrence quotes merely reflect that the statute in-
volved in the case required a showing of intent. Black did not address
whether the First Amendment demands such a showing, or why it might
do so. See United States v. Jeffries, 692 F. 3d 473, 479–480 (CA6 2012)
(Sutton, J.); see also post, at 9–10, and n. 4 (BARRETT, J., dissenting) (ex-
plaining that Black concerned a different part of the statute, preventing
consideration of contextual factors in assessing whether a statement was
a threat).
Cite as: 600 U. S. ____ (2023) 7
Opinion of the Court
falls. Or he may worry that the legal system will err, and
count speech that is permissible as instead not. See Phila-
delphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 777
(1986). Or he may simply be concerned about the expense
of becoming entangled in the legal system. The result is
“self-censorship” of speech that could not be proscribed—a
“cautious and restrictive exercise” of First Amendment free-
doms. Gertz, 418 U. S., at 340. And an important tool to
prevent that outcome—to stop people from steering “wide[ ]
of the unlawful zone”—is to condition liability on the State’s
showing of a culpable mental state. Speiser v. Randall, 357
U. S. 513, 526 (1958). Such a requirement comes at a cost:
It will shield some otherwise proscribable (here, threaten-
ing) speech because the State cannot prove what the de-
fendant thought. But the added element reduces the pro-
spect of chilling fully protected expression. As this Court
has noted, the requirement lessens “the hazard of self-cen-
sorship” by “compensat[ing]” for the law’s uncertainties.
Mishkin v. New York, 383 U. S. 502, 511 (1966). Or said a
bit differently: “[B]y reducing an honest speaker’s fear that
he may accidentally [or erroneously] incur liability,” a mens
rea requirement “provide[s] ‘breathing room’ for more valu-
able speech.” Alvarez, 567 U. S., at 733 (Breyer, J., concur-
ring in judgment).
That kind of “strategic protection” features in our prece-
dent concerning the most prominent categories of histori-
cally unprotected speech. Gertz, 418 U. S., at 342. Defama-
tion is the best known and best theorized example. False
and defamatory statements of fact, we have held, have “no
constitutional value.” Id., at 340; see Alvarez, 567 U. S., at718–719 (plurality opinion). Yet a public figure cannot re-
cover for the injury such a statement causes unless the
speaker acted with “knowledge that it was false or with
reckless disregard of whether it was false or not.” New York
Times Co. v. Sullivan, 376 U. S. 254, 280 (1964); see Garri-
son v. Louisiana, 379 U. S. 64, 74 (1964) (using the same
8 COUNTERMAN v. COLORADO
Opinion of the Court
standard for criminal libel). That rule is based on fear of
“self-censorship”—the worry that without such a subjective
mental-state requirement, the uncertainties and expense of
litigation will deter speakers from making even truthful
statements. Sullivan, 376 U. S., at 279. The First Amend-
ment, we have concluded, “requires that we protect some
falsehood in order to protect speech that matters.” Gertz,
418 U. S., at 341.
The same idea arises in the law respecting obscenity and
incitement to unlawful conduct. Like threats, incitement
inheres in particular words used in particular contexts: Its
harm can arise even when a clueless speaker fails to grasp
his expression’s nature and consequence. But still, the
First Amendment precludes punishment, whether civil or
criminal, unless the speaker’s words were “intended” (not
just likely) to produce imminent disorder. Hess v. Indiana,
414 U. S. 105, 109 (1973) (per curiam); see Brandenburg,
395 U. S., at 447; NAACP v. Claiborne Hardware Co., 458
U. S. 886, 927–929 (1982). That rule helps prevent a law
from deterring “mere advocacy” of illegal acts—a kind of
speech falling within the First Amendment’s core. Bran-
denburg, 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 repeat-
edly recognized that punishment depends on a “vital ele-
ment of scienter”—often described as the defendant’s
awareness of “the character and nature” of the materials he
distributed. Hamling v. United States, 418 U. S. 87, 122–
123 (1974); see Elonis, 575 U. S., at 739 (reiterating Ham-
ling). The rationale should by now be familiar. Yes, “ob-
scene speech and writings are not protected.” Smith v. Cal-
ifornia, 361 U. S. 147, 152 (1959). But punishing their
distribution without regard to scienter would “have the col-
lateral effect of inhibiting” protected expression. Id., at 151.
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Opinion of the Court
Given “the ambiguities inherent in the definition of obscen-
ity,” the First Amendment “requires proof of scienter to
avoid the hazard of self-censorship.” Mishkin, 383 U. S., at
511.4
The same reasoning counsels in favor of requiring a sub-
jective element in a true-threats case. This Court again
must consider the prospect of chilling non-threatening ex-
pression, given the ordinary citizen’s predictable tendency
to steer “wide[ ] of the unlawful zone.” Speiser, 357 U. S., at
526. The speaker’s fear of mistaking whether a statement
is a threat; his fear of the legal system getting that judg-
ment wrong; his fear, in any event, of incurring legal costs—
all those may lead him to swallow words that are in fact not
true threats. Some 50 years ago, Justice Marshall made the
point when reviewing a true-threats prosecution arguably
——————
4 The dissent, in urging an objective standard here, reads the obscenity
decisions as requiring merely that the defendant know “what the mate-
rial depicts” (as a speaker must know a communication’s contents). Post,
at 5–6 (opinion of BARRETT, J.) (relying on Hamling, 418 U. S., at 120–
123). But see the statements quoted above: That is not what they say.
And indeed, this Court recently rejected the dissent’s revisionist reading,
explaining in detail—and in response to a near-identical argument—that
the obscenity decisions demand awareness of “the character of [the ma-
terials,] not simply [their] contents.” Elonis, 575 U. S., at 739–740 (dis-
cussing Hamling, 418 U. S., at 120–123, and Mishkin, 383 U. S., at 510).
The dissent’s use of two other First Amendment categories—fighting
words and false commercial speech—to support an objective test also
falls flat. See post, at 3–4 (opinion of BARRETT, J.). This Court has not
upheld a conviction under the fighting-words doctrine in 80 years. At
the least, that doctrine is today a poor candidate for spinning off other
First Amendment rules. False commercial speech is also a poor analog,
though for different reasons. Put aside that the line of cases the dissent
invokes has never been listed among the historically unprotected catego-
ries of speech. See, e.g., United States v. Stevens, 559 U. S. 460, 468
(2010); see supra, at 5. Yet more relevant, the Court has often noted that
commercial speech is less vulnerable to chill than most other speech is.
See, e.g., Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469,
481 (1989). And it is the fear of chill that has led to state-of-mind re-
quirements in the context of unprotected speech.
10 COUNTERMAN v. COLORADO
Opinion of the Court
involving only political hyperbole. See Rogers v. United
States, 422 U. S. 35 (1975). The Court in Rogers reversed
the conviction on other grounds, but Justice Marshall fo-
cused on the danger of deterring non-threatening speech.
An objective standard, turning only on how reasonable ob-
servers would construe a statement in context, would make
people give threats “a wide berth.” Id., at 47 (concurring
opinion). And so use of that standard would discourage the
“uninhibited, robust, and wide-open debate that the First
Amendment is intended to protect.” Id., at 48 (quoting Sul-
livan, 376 U. S., at 270).
The reasoning—and indeed some of the words—came
straight from this Court’s decisions insisting on a subjective
element in other unprotected-speech cases, whether involv-
ing defamation, incitement, or obscenity. No doubt, the ap-
proach 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 dif-
ferently in different contexts, as the next part of this opin-
ion discusses. But the ban on an objective standard re-
mains the same, lest true-threats prosecutions chill too
much protected, non-threatening expression.
B
The next question concerns the type of subjective stand-
ard 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 hard-
est to prove. A person acts purposefully when he “con-
sciously desires” a result—so here, when he wants his
words to be received as threats. United States v. Bailey, 444
U. S. 394, 404 (1980). Next down, though not often distin-
guished from purpose, is knowledge. Ibid. A person acts
knowingly when “he is aware that [a] result is practically
certain to follow”—so here, when he knows to a practical
Cite as: 600 U. S. ____ (2023) 11
Opinion of the Court
certainty that others will take his words as threats. Ibid.(internal quotation marks omitted). A greater gap sepa-
rates those two from recklessness. A person acts recklessly,
in the most common formulation, when he “consciously dis-
regard[s] a substantial [and unjustifiable] risk that the con-
duct will cause harm to another.” Voisine v. United States,
579 U. S. 686, 691 (2016) (internal quotation marks omit-
ted). That standard involves insufficient concern with risk,
rather than awareness of impending harm. See Borden v.
United States, 593 U. S. ___, ___ (2021) (plurality opinion)
(slip op., at 5). But still, recklessness is morally culpable
conduct, involving a “deliberate decision to endanger an-
other.” Voisine, 579 U. S., at 694. In the threats context, it
means that a speaker is aware “that others could regard his
statements as” threatening violence and “delivers them an-
yway.” Elonis, 575 U. S., at 746 (ALITO, J., concurring in
part and dissenting in part).5
Among those standards, recklessness offers the right
path forward. We have so far mostly focused on the consti-
tutional interest in free expression, and on the correlative
need to take into account threat prosecutions’ chilling ef-
fects. But the precedent we have relied on has always rec-
ognized—and insisted on “accommodat[ing]”—the “compet-
ing value[ ]” in regulating historically unprotected
expression. Gertz, 418 U. S., at 348. Here, as we have
noted, that value lies in protecting against the profound
——————
5 Just to complete the mens rea hierarchy, the last level is negligence—
but that is an objective standard, of the kind we have just rejected. A
person acts negligently if he is not but should be aware of a substantial
risk—here, that others will understand his words as threats. See Bor-
den, 593 U. S., at ___ (plurality opinion) (slip op., at 5). That makes lia-
bility depend not on what the speaker thinks, but instead on what a rea-
sonable person would think about whether his statements are
threatening in nature. See Elonis, 575 U. S., at 738 (“Having liability
turn on whether a reasonable person regards the communication as a
threat—regardless of what the defendant thinks—reduces culpability
. . . to negligence” (internal quotation marks omitted)).
12 COUNTERMAN v. COLORADO
Opinion of the Court
harms, to both individuals and society, that attend true
threats of violence—as evidenced in this case. See supra,
at 2, 6. The injury associated with those statements caused
history long ago to place them outside the First Amend-
ment’s bounds. When despite that judgment we require use
of a subjective mental-state standard, we necessarily im-
pede some true-threat prosecutions. And as we go up the
subjective mens rea ladder, that imposition on States’ ca-
pacity to counter true threats becomes still greater—and,
presumably, with diminishing returns for protected expres-
sion. In advancing past recklessness, we make it harder for
a State to substantiate the needed inferences about mens
rea (absent, as is usual, direct evidence). And of particular
importance, we prevent States from convicting morally cul-
pable defendants. See Elonis, 575 U. S., at 745 (opinion of
ALITO, J.). For reckless defendants have done more than
make a bad mistake. They have consciously accepted a sub-
stantial risk of inflicting serious harm.
Using a recklessness standard also fits with the analysis
in our defamation decisions. As noted earlier, the Court
there adopted a recklessness rule, applicable in both civil
and criminal contexts, as a way of accommodating compet-
ing interests. See supra, at 7–8. In the more than half-
century in which that standard has governed, few have sug-
gested 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 Elo-
nis, 575 U. S., at 748 (opinion of ALITO, J.). The societal
interests in countering the former are at least as high. And
the protected speech near the borderline of true threats
(even though sometimes political, as in Rogers) is, if any-
thing, further from the First Amendment’s central concerns
than the chilled speech in Sullivan-type cases (i.e., truthful
reputation-damaging statements about public officials and
figures).
Cite as: 600 U. S. ____ (2023) 13
Opinion of the Court
It is true that our incitement decisions demand more—
but the reason for that demand is not present here. When
incitement is at issue, we have spoken in terms of specific
intent, presumably equivalent to purpose or knowledge.
See Hess, 414 U. S., at 109; supra, at 8. In doing so, we
recognized that incitement to disorder is commonly a hair’s-
breadth away from political “advocacy”—and particularly
from strong protests against the government and prevailing
social order. Brandenburg, 395 U. S., at 447. Such protests
gave rise to all the cases in which the Court demanded a
showing of intent. See ibid.; Hess, 414 U. S., at 106;
Claiborne Hardware Co., 458 U. S., at 888, 928. And the
Court decided those cases against a resonant historical
backdrop: the Court’s failure, in an earlier era, to protect
mere advocacy of force or lawbreaking from legal sanction.
See, e.g., Whitney v. California, 274 U. S. 357 (1927); Gitlow
v. New York, 268 U. S. 652 (1925); Abrams v. United States,
250 U. S. 616 (1919). A strong intent requirement was, and
remains, one way to guarantee history was not repeated. It
was a way to ensure that efforts to prosecute incitement
would not bleed over, either directly or through a chilling
effect, to dissenting political speech at the First Amend-
ment’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 nei-
ther so central to the theory of the First Amendment nor so
vulnerable to government prosecutions. It is not just that
our incitement decisions are distinguishable; it is more that
they compel the use of a distinct standard here.6
——————
6 Our obscenity decisions are of no help in this inquiry, because the
Court has never determined the precise mens rea needed to impose pun-
ishment. In arguing to the contrary, the concurrence relies mainly on
Hamling. Post, at 18–19 (opinion of SOTOMAYOR, J.). But if the dissent
is wrong in saying that Hamling (and other obscenity decisions) allowed
an objective inquiry, see supra, at 9, n. 4, the concurrence is wrong in
14 COUNTERMAN v. COLORADO
Opinion of the Court
That standard, again, is recklessness. It offers “enough
‘breathing space’ for protected speech,” without sacrificing
too many of the benefits of enforcing laws against true
threats. Elonis, 575 U. S., at 748 (opinion of ALITO, J.). As
with any balance, something is lost on both sides: The rule
we adopt today is neither the most speech-protective nor
the most sensitive to the dangers of true threats. But in
declining one of those two alternative paths, something
more important is gained: Not “having it all”—because that
is impossible—but having much of what is important on
both sides of the scale.7
III
It is time to return to Counterman’s case, though only a
few remarks are necessary. Counterman, as described
above, was prosecuted in accordance with an objective
standard. See supra, at 3. The State had to show only that
a reasonable person would understand his statements as
threats. It did not have to show any awareness on his part
that the statements could be understood that way. For the
reasons stated, that is a violation of the First Amendment.
We accordingly vacate the judgment of the Colorado
Court of Appeals and remand the case for further proceed-
ings not inconsistent with this opinion.
It is so ordered.
——————
suggesting that it required use of a purpose or knowledge standard. As
to the concurrence’s claim, Hamling held only that a statute with that
standard was “constitutionally sufficient.” 418 U. S., at 123. The deci-
sion said nothing about whether it was constitutionally necessary, or in-
stead whether a recklessness standard would suffice as well.
7 The dissent accuses the Court of making a “Goldilocks judgment” in
favoring a recklessness standard. Post, at 13 (opinion of BARRETT, J.).
But in law, as in life, there are worse things than being “just right.”
Cite as: 600 U. S. ____ (2023) 1
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OTOMAYOR concurring
OTOMAYOR , J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–138
_________________
BILLY RAYMOND COUNTERMAN, PETITIONER v.
COLORADO
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
COLORADO
[June 27, 2023]
JUSTICE SOTOMAYOR, with whom JUSTICE GORSUCH joins
as to Parts I, II, III–A, and III–B, concurring in part and
concurring in the judgment.
When the government seeks to punish speech based on
its content, the First Amendment typically imposes strin-
gent 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 catego-
ries 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 tra-
dition 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 assas-
sinate the President. Such laws are plainly important.
There is no longstanding tradition, however, of punishing
speech merely because it is unintentionally threatening.
2 COUNTERMAN v. COLORADO
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OTOMAYOR concurring
OTOMAYOR , J.
Instead, this Court’s precedent, along with historical stat-
utes and cases, reflect a commonsense understanding that
threatening someone is an intentional act. As to what in-
tent is needed, “[t]raditionally, one intends certain conse-
quences when he desires that his acts cause those conse-
quences or knows that those consequences are substantially
certain to result from his acts.” Tison v. Arizona, 481 U. S.
137, 150 (1987) (internal quotation marks omitted). This
does not require showing that an individual intends to carry
through with the threat. But it does require showing that
an individual desires to threaten or is substantially certain
that her statements will be understood as threatening.
Today, unfortunately, the Court unnecessarily departs
from this traditional understanding. That is not to say that
I disagree with the Court on everything. Far from it. I join
the Court’s conclusion that some subjective mens rea is re-
quired in true-threats cases. I also agree that in this par-
ticular case, where petitioner was prosecuted for stalking
that involved threatening statements, a mens rea of reck-
lessness is amply sufficient. Where I part ways with the
Court is that I would not reach the distinct and more com-
plex question whether a mens rea of recklessness is suffi-
cient for true-threats prosecutions generally. Further, re-
quiring nothing more than a mens rea of recklessness is
inconsistent with precedent, history, and the commitment
to even harmful speech that the First Amendment en-
shrines. 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
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OTOMAYOR , J.
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 con-
duct. Or they might warrant less First Amendment protec-
tion for other reasons. On the other hand, there is the ques-
tion of what constitutes the well-defined and longstanding
category of unprotected true threats. It is with this latter
question that I do not see the need to address whether a
mens rea of recklessness is sufficient across the board.
First, the courts below did not address whether reckless-
ness was sufficient to prosecute true threats and neither of
the actual parties have advocated a recklessness standard.
Colorado disclaimed the idea that recklessness was re-
quired, 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 re-
sort to the true-threats exemption to the First Amendment.
True-threats doctrine covers content-based prosecutions
for single utterances of “pure speech,” which need not even
be communicated to the subject of the threat. Watts v.
United States, 394 U. S. 705, 707 (1969) (per curiam). The
First Amendment would normally place strict limits on
such prosecutions. So there is typically a need to determine
whether the speech in question falls within the tradition-
ally unprotected category of true threats.
This is not such a case, however. Petitioner was con-
victed for “stalking [causing] serious emotional distress” for
a combination of threatening statements and repeated, un-
wanted, direct contact with C. W. 497 P. 3d 1039, 1043
4 COUNTERMAN v. COLORADO
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OTOMAYOR concurring
OTOMAYOR , J.
(Colo. App. 2021).1 This kind of prosecution raises fewer
First Amendment concerns for a variety of reasons. Stalk-
ing can be carried out through speech but need not be,
which requires less First Amendment scrutiny when speech
is swept in. See, e.g., Rumsfeld v. Forum for Academic and
Institutional Rights, Inc., 547 U. S. 47, 62 (2006). The con-
tent of the repeated communications can sometimes be ir-
relevant, such as persistently calling someone and hanging
up, or a stream of “utterly prosaic” communications. Ante,
at 1. Repeatedly forcing intrusive communications directly
into the personal life of “an unwilling recipient” also enjoys
less protection. Rowan v. Post Office Dept., 397 U. S. 728,
738 (1970). Finally, while there is considerable risk with a
single intemperate utterance that a speaker will “acci-
dentally or erroneously incur liability,” ante, at 7 (internal
quotation marks and alterations omitted), that risk is far
reduced with a course of repeated unwanted contact. Take,
for example, petitioner continuously contacting C. W. de-
spite 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 prose-
cuted only if his actions fell under the true-threats excep-
tion. I do not think that is accurate, given the lessened
——————
1 The statute of conviction applies to someone who “[r]epeatedly fol-
lows, approaches, contacts, places under surveillance, or makes any form
of communication with another person . . . in a manner that would cause
a reasonable person to suffer serious emotional distress and does cause
that person . . . serious emotional distress.” Colo. Rev. Stat. §18–3–
602(1)(c) (2022).
2 For these reasons, stalking prosecutions that do not rely on the con-
tent of communications would raise even fewer First Amendment con-
cerns.
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First Amendment concerns at issue. In such cases, reck-
lessness is amply sufficient. And I would stop there. There
is simply no need to reach out in this stalking case to deter-
mine whether anything more than recklessness is needed
for punishing true threats generally.
II
Lest there be any doubt, the First Amendment stakes
around the definition of “true threats” are high indeed. The
First Amendment’s mantle covers speech that is “vitupera-
tive, abusive and inexact.” Watts, 394 U. S., at 708. “It
might be tempting to dismiss” seemingly low-value speech
“as unworthy of . . . robust First Amendment protections.”
Mahanoy Area School Dist. v. B. L., 594 U. S. ___, ___ (2021)
(slip op., at 11). Yet “[m]ost of what we say to one another
lacks ‘religious, political, scientific, educational, journal-
istic, historical, or artistic value’ (let alone serious value),
but it is still sheltered from Government regulation.” Ste-
vens, 559 U. S., at 479 (emphasis deleted). First Amend-
ment vigilance is especially important when speech is dis-
turbing, frightening, or painful, because the undesirability
of such speech will place a heavy thumb in favor of silencing
it. In response, the Court has upheld First Amendment
rights in the context of gruesome animal cruelty videos, id.,
at 472; cross burning, Virginia v. Black, 538 U. S. 343, 347–
348 (2003); hateful rhetoric in protests of the funerals of
fallen soldiers, Snyder v. Phelps, 562 U. S. 443, 448–449,
458 (2011); and computer-generated images of child pornog-
raphy, Ashcroft v. Free Speech Coalition, 535 U. S. 234,
239–240, 258 (2002).
The risk of overcriminalizing upsetting or frightening
speech has only been increased by the internet. Our soci-
ety’s discourse occurs more and more in “the ‘vast demo-
cratic forums of the Internet’ in general, and social media
in particular.” Packingham v. North Carolina, 582 U. S. 98,
6 COUNTERMAN v. COLORADO
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OTOMAYOR , J.
104 (2017) (citation omitted). “Rapid changes in the dy-
namics 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 threat-
ening 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 fo-
rum. “[A] drunken joke” in bad taste can lead to criminal
prosecution. Perez v. Florida, 580 U. S. 1187 (2016)
(SOTOMAYOR, J., concurring in denial of certiorari). In the
heat of the moment, someone may post an enraged com-
ment under a news story about a controversial topic. An-
other person might reply equally heatedly. In a Nation that
has never been timid about its opinions, political or other-
wise, this is commonplace.
Many of this Court’s true-threats cases involve such
charged political speech. See Black, 538 U. S., at 348–349
(Ku Klux Klan rally); Watts, 394 U. S., at 707 (antiwar pro-
test); Rogers v. United States, 422 U. S. 35, 41–42, 47–48
(1975) (Marshall, J., concurring) (opposition to Nixon’s pol-
icies toward China). Amici give further contemporary ex-
amples 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
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OTOMAYOR , J.
certain groups. A jury’s determination of when angry hy-
perbole crosses the line will depend on amorphous norms
around language, which will vary greatly from one discur-
sive community to another. Juries’ decisions will reflect
their “background knowledge and media consumption.”
Minnesota Voters Alliance v. Mansky, 585 U. S. ___, ___
(2018) (slip op., at 17). “[S]peakers whose ideas or views
occupy the fringes of our society have more to fear, for their
violent and extreme rhetoric, even if intended simply to con-
vey an idea or express displeasure, is more likely to strike
a reasonable person as threatening.” United States v.
White, 670 F. 3d 498, 525 (CA4 2012) (Floyd, J., concurring
in part and dissenting in part). Members of certain groups,
including religious and cultural minorities, can also use
language that is more susceptible to being misinterpreted
by outsiders. And unfortunately yet predictably, racial and
cultural stereotypes can also influence whether speech is
perceived as dangerous. See, e.g., A. Dunbar, C. Kubrin, &
N. Scurich, The Threatening Nature of “Rap” Music, 22 J.
Psychol. Pub. Pol’y & L. 281, 281–282, 288–290 (2016).
On the other hand, the internet has also made stalking
and harassment even easier. Stalking can be devastating
and dangerous. See Brief for First Amendment Scholars as
Amici Curiae 7–8. Lives can be ruined, and in the most
tragic instances, lives are lost. Ibid. Harassers can hide
behind online anonymity while tormenting others. This
happens in the context of intimate relationships and it hap-
pens with strangers. Overly constraining our society’s abil-
ity to respond to stalking would come at a real cost. For the
reasons given, however, a mens rea standard for true
threats would not hinder stalking prosecutions. See supra,
at 3–5.
Even isolated threatening speech can do real harm. Such
speech not only disrupts lives, it can silence the speech of
others who become afraid to speak out. A mens rea require-
8 COUNTERMAN v. COLORADO
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OTOMAYOR concurring
OTOMAYOR , J.
ment would not, however, present an uncommon or insur-
mountable barrier to true-threats prosecutions.3 Nonethe-
less, under such a standard, there will be some speech that
some find threatening that will not and should not land
anyone in prison.
III
These high First Amendment stakes are further reason
for caution when delineating the boundaries of what consti-
tutes a true threat. In undertaking that analysis, the Court
and I part ways on the order of operations. The Court be-
gins by defining true threats as all objectively threatening
speech, entirely independent of whether the speaker in-
tended to be threatening, ante, at 6, and the lead dissent
agrees, post, at 2–3 (opinion of BARRETT, J.). The Court gets
there by relying on this Court’s interpretation of the word
“threat” in a federal statute. Ante, at 6 (citing Elonis v.
United States, 575 U. S. 723, 733 (2015)). The Court de-
clares all such speech categorically unprotected, and then
asks what “buffer zone” is needed in order to protect other,
unthreatening speech. See ante, at 4–7.
Respectfully, I see the analysis differently. The first step
in the analysis should instead be to ask about the scope of
the well-defined and narrow category of “true threats” as a
constitutional matter. This Court has already warned
about the danger of creating new categories of “unprotected
speech” exempt from the ordinary First Amendment frame-
work for balancing our society’s commitment to free expres-
sion with other interests. Stevens, 559 U. S., at 470. If
courts were at liberty to redefine what counts as a “threat”
——————
3 Intent requirements are common, including for incitement that re-
sults in actual violence, not just the threat of it. See infra, at 15–17. For
that reason there are longstanding frameworks for determining when
someone is not guilty by reason of insanity, and when delusions do (and
do not) defeat a showing of intent. See, e.g., 1 W. LaFave, Substantive
Criminal Law §§7.1(a), (b) (3d ed. 2018); 2 id., §9.2.
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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, Elo-
nis, 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 is-
sues.” Id., at 740. Instead, a careful examination of this
Court’s true-threats precedent and the history of threat
crimes does not support a long-settled tradition of punish-
ing inadvertently threatening speech.
A
A natural place to begin, one might think, would be with
this Court’s most recent decision involving the First
Amendment, mens rea, and true threats. Yet to read the
Court’s decision, one would have little idea that in a semi-
nal 2003 decision, this Court held that a threat conviction
could not stand because of an insufficient mens rea require-
ment. See Black, 538 U. S. 343. Black plainly sets out a
conception of true threats as including a mens rea require-
ment.
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 con-
tained in a five-Justice majority opinion. The other rele-
vant 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 burn-
ing 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
10 COUNTERMAN v. COLORADO
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intent to commit an act of unlawful violence.” Id., at 359(emphasis added). However, “[t]he speaker need not actu-
ally intend to carry out the threat,” as true threats also in-
clude intimidation alone. Id., at 359–360. And “[i]ntimida-
tion 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 (empha-
sis 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 ev-
idence of an intent to intimidate.’ ” Id., at 348. In other
words, the all-important intent requirement could be satis-
fied 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 un-
der the statute could not stand. Id., at 367, 379. For the
plurality, the intent requirement was “the very reason why
a State may ban cross burning” because it “distinguish[ed]”
between the constitutionally unprotected true threat of
burning a cross with intent to intimidate and “cross burning
[as] a statement of ideology.” Id., at 365–366.4 For Justice
Scalia, the “plurality [was] correct in all of this.” Id., at 372(opinion concurring in part, concurring in judgment in part,
——————
4 The lead dissent asserts that the Black plurality’s decision was based
on how the statute “ ‘ignore[d] all of the contextual factors that are nec-
essary to decide whether a particular cross burning’ was covered by the
statute.” Post, at 9 (opinion of BARRETT, J.) (quoting 538 U. S., at 367(plurality opinion)). But some context is missing from this reading itself.
The full sentence is “all of the contextual factors that are necessary to
decide whether a particular cross burning is intended to intimidate.” Id.,
at 367 (emphasis added). The plurality was thus concerned with context
to the extent it was relevant to the mens rea requirement needed to ren-
der the statute constitutional. Id., at 365–366.
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and dissenting in part). There was a constitutional need for
a distinction between cross burning “ ‘intended to intimi-
date’ ” and cross burning as “ ‘a statement of ideology.’ ”
Ibid. The plurality and Justice Scalia only parted ways as
to whether to hold that the statute was “facially invalid,”
id., at 367 (plurality opinion), or just that the jury instruc-
tions made it unclear “whether the jury has rendered its
verdict (as it must)” with sufficient consideration of “intent
to intimidate,” id., at 380 (opinion of Scalia, J.) (emphasis
added).
The through-line is not hard to discern. First, unpro-
tected true threats include a subjective mens rea require-
ment. Id., at 360 (majority opinion). Second, as a result,
“Virginia’s statute does not run afoul of the First Amend-
ment insofar as it bans cross burning with intent to intimi-
date.” Id., at 362 (majority opinion). Third, a conviction
could not stand if it had categorically dispensed with that
intent requirement, id., at 365–366 (plurality opinion), or if
the jury had insufficiently considered “intent to intimidate,”
id., at 380 (opinion of Scalia, J.).
In sum, all five Justices in the Black majority agreed that
a true-threats prosecution could not stand under the First
Amendment without a sufficient subjective mens rea re-
quirement.5
——————
5 According to the Court today and the lead dissent, however, Black
somehow managed not to say anything about the First Amendment mens
rea requirement for true-threats prosecutions—while striking down a
true-threat conviction under the First Amendment for an insufficient
mens rea requirement. On this reading, Black only discussed intent be-
cause “the statute involved in the case required a showing of intent.”
Ante, at 6, n. 3; post, at 9, n. 4 (discussion of intent was “a reference to
the statutory requirements for a conviction, not the constitutional re-
quirements”). This puzzling interpretation does not explain why an illu-
sory mens rea requirement in a Virginia law would pose any First
Amendment problems if the Amendment did not impose a mens rea re-
quirement of this kind. After all, “[w]hy would the First Amendment
care how a jury goes about finding an [intent] element that is a matter
12 COUNTERMAN v. COLORADO
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B
In defining true threats as “statements where the
speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence,” id., at 359,
the Court in Black echoed the traditional understanding of
threats. Historically, threat crimes covered the same kind
of subjectively threatening speech Black invoked.
In reviewing this history, it is also vital to keep in mind
the nature of the inquiry. Removing speech from normal
First Amendment scrutiny is a major shift in the balance of
expression and public interest that our Constitution gener-
ally strikes. The inquiry is therefore whether there is a
“long-settled tradition” of prohibiting inadvertently threat-
ening 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 re-
quired and held that it is not. That is a remarkable thing
when one considers that the sample size consists of deci-
sions from both sides of the Atlantic across centuries.
There was a long tradition of crimes for threatening an-
other 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 let-
ter . . . 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 ex-
plained that the statute was “levelled against such whose
intention it was [to] obtain their object by creating terror in
——————
of indifference to the Amendment?” United States v. Heineman, 767
F. 3d 970, 980 (CA10 2014). The obvious answer, from Black’s reasoning
to its holding, is that such a mens rea requirement was necessary for the
statute to target true threats.
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[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) (indict-
ment 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 ef-
fect, and perform them with the intention that such shall
be their operation.” 12 American and English Encyclopae-
dia of Law 522–524 (J. Merrill ed. 1890); see also J. Boag,
Imperial Lexicon of the English Language 530 (1850) (de-
fining “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 ev-
idence. See King v. Philipps, 6 East 464, 475, 102 Eng. Rep.
1365, 1369 (1805). Courts thus considered “the threat in-
tended to be made by the prisoner” and “what he meant by
what he had written” in determining whether he had vio-
lated the statute. Regina v. Hill, 5 Cox 233, 235 (Crim. Cas.
1851); see also King v. John and Mary Hammond, 1 Leach
444, 446, 168 Eng. Rep. 324, 325 (1787) (describing the of-
fense of sending a threatening letter “to the party whose
fears the threat it contains was calculated to alarm”).
Threat laws in the United States were of a piece. Some
state laws about threats expressly required maliciousness.
See Me. Rev. Stat., Tit. 12, ch. 154, §26 (1840); 1884 La.
Acts No. 64, §1, p. 86. Courts more generally emphasized
the importance of a mens rea requirement. See, e.g., State
v. Benedict, 11 Vt. 236, 239 (1839). The North Carolina Su-
14 COUNTERMAN v. COLORADO
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preme Court, for example, singled out threats as quintes-
sential 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 re-
quirements in. See Commonwealth v. Morton, 140 Ky. 628,
631, 131 S. W. 506, 507–508 (1910) (letter must be “calcu-
lated 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 threat-
ened 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” his-
tory of prosecuting inadvertently threatening speech.
There is no line of cases or pattern of statutes affirmatively
stating that an objective standard is sufficient.
C
Put together, Black and the history point to an intent re-
quirement. When Black defined and analyzed true threats
in terms of intent, there is no reason to think the Court used
intent to mean anything less than its traditional definition
of purpose or knowledge. See, e.g., Tison, 481 U. S., at 150.
Nor would a recklessness standard play the necessary role
of distinguishing between cross burning that is “ ‘intended
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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 of-
ten 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 embrac-
ing either the specific requirement of purpose or the more
general one of knowledge or awareness.” United States v.
United States Gypsum Co., 438 U. S. 422, 445 (1978); see
also Tison, 481 U. S., at 150; Carter v. United States, 530
U. S. 255, 270 (2000) (describing “feloniously” as equivalent
to “ ‘intent’ ”). And at the very least, there is no well-settled
history showing that it is enough for a defendant to be
merely aware of some risk that their statements could be
threatening. See, e.g., Borden v. United States, 593 U. S.
___, ___ (2021) (plurality opinion) (slip op., at 5) (reckless-
ness requires awareness of a level of risk that “need not
come anywhere close to a likelihood”). The history is, in-
stead, replete with the enduring and commonsense pairing
of threats and intent.
D
The Court, eschewing Black and history, instead reaches
its result based on the need for a “buffer zone” drawn by
analogy to other categories of unprotected speech. Ante, at
4. For the reasons above, I do not think we can leap ahead
to this question. With that caveat, I agree with the Court
that precedent in other areas of unprotected speech and
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concerns about chilling support a subjective mens rea re-
quirement for true threats. Yet these same chilling con-
cerns only further buttress the conclusion that true threats
should be limited to intentionally threatening speech. In-
deed, in the concurrence by Justice Marshall that the Court
invokes, ante, at 9–10, he advocated “requir[ing] proof that
the speaker intended his statement to be taken as a threat,”
based on concerns about punishing “pure speech.” Rogers,
422 U. S., at 47–48. In determining the appropriate mens
rea, the Court analogizes to three categories of traditionally
unprotected speech: incitement, obscenity, and defamation.
None of these warrants expanding the narrow boundaries
of true threats.
1
Speech inciting harm is the closest cousin to speech
threatening harm. Both incitement and threats put other
people at risk, and both “sprin[g] from [Justice] Holmes’s
‘clear and present danger’ test.” G. Blakey & B. Murray,
Threats, Free Speech, and the Jurisprudence of the Federal
Criminal Law, 2002 B. Y. U. L. Rev. 829, 1069 (2002). Like
true threats, incitement’s scope is defined in terms of both
intention and effect, covering speech “[1] intended to pro-
duce, and [2] likely to produce, imminent disorder.” Hess v.
Indiana, 414 U. S. 105, 109 (1973) (per curiam).
Despite their similar nature and source, the Court today
draws a hard line between the two. Incitement requires
“ ‘inten[t].’ ” Ante, at 8. While for threats, the speaker need
only be “aware that others could regard his statements as
threatening violence and delive[r] them anyway.” Ante, at
11 (internal quotation marks omitted). The Court justifies
this asymmetry by the idea “that incitement to disorder is
commonly a hair’s-breadth away from political ‘advocacy,’ ”
ante, at 13, and the lead dissent says much the same, post,
at 7 (opinion of BARRETT, J.). These opinions offer little ba-
sis for distinguishing threats on this ground, as this Court’s
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own cases show time and again how true-threats prosecu-
tions sweep in political speech. See Black, 538 U. S., at348–349; Watts, 394 U. S., at 707 (antiwar protest); Rogers,
422 U. S., at 41–42 (Marshall, J., concurring) (opposition to
Nixon’s policies toward China).6 Not only that, but incite-
ment itself is often only a hair’s-breadth away from threats.
Take the seminal incitement case NAACP v. Claiborne
Hardware Co., 458 U. S. 886 (1982). During a civil rights
boycott, NAACP leader Charles Evers, brother of the mur-
dered civil rights hero Medgar Evers, gave a series of
heated speeches. See id., at 898–902. He intoned that “boy-
cott 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 acknowl-
edged that in this charged context, these speeches “might
have been understood as inviting an unlawful form of disci-
pline or, at least, as intending to create a fear of violence.”
Id., at 927. Yet inflammatory and threatening as these
speeches were, they did not constitute incitement. That
was because “there [was] no evidence—apart from the
speeches themselves—that Evers authorized, ratified, or di-
rectly threatened acts of violence.” Id., at 929. His speeches
were thus not “ ‘directed to inciting or producing imminent
lawless action’ ” and he had not “specifically intended to fur-
ther an unlawful goal.” Id., at 925, n. 68, 928.
Under a recklessness rule, Claiborne would have come
out the other way. So long as Evers had some subjective
awareness of some risk that a reasonable person could re-
——————
6 Nor is this limited to decisions by this Court. Threats cases sweep in
political speech. See, e.g., State v. Taylor, 379 N. C. 589, 590, 866 S. E.
2d 740, 744 (2021). Incitement cases can sweep in nonpolitical speech.
See, e.g., Rice v. Paladin Enterprises, Inc., 128 F. 3d 233, 264, n. 11, 267
(CA4 1997). And still other cases show how incitement and threats can
often go hand in hand. See, e.g., State v. Caroll, 456 N. J. Super. 520,
544–545, 196 A. 3d 106, 120–121 (App. Div. 2018).
18 COUNTERMAN v. COLORADO
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gard his statements as threatening, that would be suffi-
cient. 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 ex-
ample. The foundational incitement case, Brandenburg v.
Ohio, 395 U. S. 444 (1969) (per curiam), extended First
Amendment protections to armed Klan members uttering
racial slurs, a warning that “there might have to be some
revengeance taken,” and plans for a “ ‘four hundred thou-
sand 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 prin-
ciple. 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 effec-
tively 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 un-
derstood as part of a true threat, just like intent to incite is
part of incitement.
2
While obscenity is a step further afield of true threats and
incitement, examination of this Court’s obscenity case law
further supports an intent requirement for prosecutions of
true threats.
The Constitution “ ‘requires proof of scienter’ ” in part “ ‘to
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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 obser-
vation 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 suffi-
cient 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 materi-
als.” Hamling, 418 U. S., at 123. This ensures that “not
innocent but calculated purveyance of filth . . . is exorcised.”
Id., at 122 (internal quotation marks omitted). While the
Court today asserts that this Court has “never determined
the precise mens rea” for obscenity, ante, at 13, n. 6, the
Court has cited a knowledge standard approvingly for half
a century, see Hamling, 418 U. S., at 123; Elonis, 575 U. S.,
at 739.8 Applying that standard to threats, the “ ‘calculated
——————
7 Analogously, the Court’s civil defamation case law recognizes that
heightened liability can require a heightened mens rea; even as to non-
public figures, a higher standard must be met for punitive damages in
certain cases. See, e.g., Gertz v. Robert Welch, Inc., 418 U. S. 323, 349–
350 (1974).
8 The Court has held, however, that recklessness is sufficient for child
pornography. See Osborne v. Ohio, 495 U. S. 103, 115 (1990). This Court
has emphasized time and again how child pornography is “a special case”
because “[t]he market for child pornography [is] ‘intrinsically related’ to
the underlying abuse” and thus “ ‘an integral part of the production of
such materials, an activity illegal throughout the Nation.’ ” United
States v. Stevens, 559 U. S. 460, 471 (2010) (quoting New York v. Ferber,
458 U. S. 747, 759, 761 (1982)); see also Osborne, 495 U. S., at 110–111.
Child pornography, with its integral ties to separate criminal conduct, is
not a strong analogue for threats, which can be fleeting statements in
total isolation from any other criminality (though it is a stronger analogy
to threats as part of an unlawful course of stalking). Yet the Court’s
decision today puts child pornography on a First Amendment par with
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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 ob-
scenity, 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 be-
tween communities and over time. The same chilling con-
cerns apply to true threats. A recklessness standard based
on what a reasonable person could find threatening will de-
pend on ever-shifting community norms around language
and when heated speech crosses the line from overly aggres-
sive to criminal. See supra, at 5–7.9
3
Finally, the Court relies heavily upon this Court’s frame-
work for defamation. Specifically, the Court analogizes to
the “reckless disregard” standard for defamation of public
figures or punitive damages for certain claims involving pri-
vate figures. New York Times Co. v. Sullivan, 376 U. S.
254, 279–280 (1964).
Yet while civil defamation may be “the best known and
best theorized example” of unprotected speech, ante, at 8,
the same does not go for criminal prosecution of defamation.
It is true that this Court in 1964 invalidated a prosecution
——————
overheated political speech or violent song lyrics.
9 There is a further safeguard in obscenity cases. Something is obscene
if “taken as a whole, [it] lacks serious literary, artistic, political, or scien-
tific value.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564,
574 (2002) (internal quotation marks omitted). An intent requirement
can provide a similar safeguard for threats. As Virginia v. Black, 538
U. S. 343 (2003), explained, requiring intent distinguishes between
speech intended to intimidate and speech intended to express a political
statement. Id., at 365–366 (plurality opinion); id., at 372 (opinion of
Scalia, J.).
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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 prosecu-
tions 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 re-
quired 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 re-
quires that an individual disregard a relatively unspecified
level of risk that the harm in question will occur. See Bor-
den, 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 publica-
tion with a high degree of awareness of probable falsity or
must have entertained serious doubts as to the truth.”
Harte-Hanks Communications, Inc. v. Connaughton, 491
U. S. 657, 667 (1989) (internal quotation marks and ellipsis
omitted). This makes sense. Allowing liability for aware-
ness of a small chance that a story may be false would un-
dermine the very shield Sullivan erects.
For similar reasons, after today’s ruling, future courts
grappling with how to articulate the appropriate level of
recklessness in true-threats cases would be well served to
consult the Sullivan standard. The equivalent to Sullivan
for true threats would require a high degree of awareness
that a statement was probably threatening or serious
22 COUNTERMAN v. COLORADO
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doubts as to the threatening nature of the statement. This
could avoid the chilling that would arise from a more amor-
phous and easily satisfied standard.
4
This Court’s various frameworks for unprotected speech
do not speak with one voice, as perhaps befits the First
Amendment. The above survey does not, however, give rea-
son to depart from the traditional understanding of true
threats. To the contrary, this case law supports keeping
true threats within their traditional bounds. Incitement
similarly requires intent. The same chilling concerns that
have led this Court to approve a knowledge requirement for
obscenity are present with true threats. And to the extent
the civil defamation context is relevant, at the very least, it
points to a precise and demanding form of recklessness.10
IV
Maintaining true threats doctrine within its traditional
boundaries will guard against the overcriminalization of a
wide range of political, artistic, and everyday speech based
——————
10 The lead dissent headlines its analysis by pointing to this Court’s
case law on “fighting words.” Post, at 3–4 (opinion of BARRETT, J.). This
is an unlikely candidate for a broader theory of the First Amendment.
For “nearly three-quarters of a century . . . the Court has never . . . up-
held a fighting words conviction” and “[t]he cumulative impact of [the
Court’s] decisions is to make it unlikely that a fighting words law could
survive.” E. Chemerinsky, The First Amendment 1094 (6th ed. 2019). It
is not hard to see why such convictions would be unlikely to pass First
Amendment muster; the leading case involved a Jehovah’s Witness dis-
tributing literature who was arrested for breach of the peace for calling
a public official a “ ‘damned Fascist.’ ” Chaplinsky v. New Hampshire,
315 U. S. 568, 569, 573–574 (1942). Drawing upon a conviction like the
one in Chaplinksy as the proper model for criminalizing political speech
is proof itself of the serious risks with the lead dissent’s approach. In
any event, as to the question at hand, when such breach of the peace
offenses involved threats, intent to threaten was required. See 2 R. An-
derson, Wharton’s Criminal Law and Procedure §803, pp. 659–660
(1957).
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on its content alone. This does not mean that unintention-
ally threatening communications are exempt from regula-
tion, 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 insur-
mountable 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 in-
ferred.” American Communications Assn. v. Douds, 339
U. S. 382, 411 (1950).
* * *
I agree with the Court’s conclusion that the First Amend-
ment requires a subjective mens rea in true-threats cases,
and I also agree that recklessness is amply sufficient for
this case. Yet I would stop there, leaving for another day
the question of the specific mens rea required to prosecute
true threats generally. If that question is reached, however,
the answer is that true threats encompass a narrow band
of intentional threats. Especially in a climate of intense po-
larization, 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 respect-
fully concur only in part and in the judgment.
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THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–138
_________________
BILLY RAYMOND COUNTERMAN, PETITIONER v.
COLORADO
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
COLORADO
[June 27, 2023]
JUSTICE THOMAS, dissenting.
I join JUSTICE BARRETT’s dissent in full. I write sepa-
rately to address the majority’s surprising and misplaced
reliance on New York Times Co. v. Sullivan, 376 U. S. 254(1964). In New York Times, this Court held that the First
Amendment bars public figures from recovering damages
for defamation unless they can show that the statement at
issue was made with “ ‘actual malice’—that is, with
knowledge that it was false or with reckless disregard of
whether it was false or not.” Id., at 280. Like the majority’s
decision today, “New York Times and the Court’s decisions
extending it were policy-driven decisions masquerading as
constitutional law.” McKee v. Cosby, 586 U. S. ___, ___
(2019) (THOMAS, J., concurring in denial of certiorari) (slip
op., at 2). Instead of simply applying the First Amendment
as it was understood at the time of the Founding, “the Court
fashioned its own ‘ “federal rule[s]” ’ by balancing the ‘com-
peting 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
2 COUNTERMAN v. COLORADO
THOMAS, J., dissenting
this Court in New York Times and its progeny broke sharply
from the common law of libel, and there are sound reasons
to question whether the First and Fourteenth Amendments
displaced this body of common law.” McKee, 586 U. S., at
___ (opinion of THOMAS, J.) (slip op., at 6). Thus, as I have
previously noted, “[w]e should reconsider our jurisprudence
in this area.” Id., at ___ (slip op., at 14); see also Berisha v.
Lawson, 594 U. S. ___ (2021) (THOMAS, J., dissenting from
denial of certiorari).
I am far from alone. Many Members of this Court have
questioned the soundness of New York Times and its nu-
merous extensions. See, e.g., Berisha, 594 U. S., at ___–___
(GORSUCH, J., dissenting from denial of certiorari) (slip op.,
at 5–8); Coughlin v. Westinghouse Broadcasting & Cable,
Inc., 476 U. S. 1187 (1986) (Burger, C. J., joined by
Rehnquist, J., dissenting from denial of certiorari); Gertz,
418 U. S., at 370 (White, J., dissenting); Rosenbloom v.
Metromedia, Inc., 403 U. S. 29, 62 (1971) (Harlan, J., dis-
senting); 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) (question-
ing 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.
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BARRETT, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–138
_________________
BILLY RAYMOND COUNTERMAN, PETITIONER v.
COLORADO
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
COLORADO
[June 27, 2023]
JUSTICE BARRETT, with whom JUSTICE THOMAS joins,
dissenting.
Billy Counterman was convicted under a Colorado law
that prohibits true threats. As everyone agrees, the statute
requires that the speaker understand the meaning of his
words. Ante, at 4, n. 1. The question is what more the First
Amendment requires. Colorado maintains that an objective
standard is enough—that is, the government must show
that a reasonable person would regard the statement as a
threat of violence. Counterman, however, argues that the
First Amendment requires a subjective test—that is, the
speaker himself must intend or know the threatening na-
ture of the statement.
It should be easy to choose between these positions. True
threats do not enjoy First Amendment protection, and
nearly every other category of unprotected speech may be
restricted using an objective standard. Nonetheless, the
Court adopts a subjective standard, though not quite the
one advanced by Counterman. The Court holds that speak-
ers must recklessly disregard the threatening nature of
their speech to lose constitutional protection. Because this
unjustifiably grants true threats preferential treatment, I
respectfully dissent.
2 COUNTERMAN v. COLORADO
BARRETT, J., dissenting
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 par-
ticular 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 Amend-
ment”). 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 “in-
flict injury.” Ibid. They provoke “the fear of violence,” cre-
ate “disruption,” give rise to “the possibility that the threat-
ened 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: Nei-
ther 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
——————
1 Indeed, the Colorado Legislature considered these very harms when
it enacted the statute at issue here. The statutory findings explain that
stalking, harassment, and threats have “an immediate and long-lasting
impact on quality of life as well as risks to security and safety of the
victim and persons close to the victim.” Colo. Rev. Stat. §§18–3–601(1)(f),
18–3–602(1) (2022). So the legislature passed the statute to “encourag[e]
and authoriz[e] effective intervention” before the covered conduct could
“escalate into behavior that has even more serious consequences.” §18–
3–601(2).
Cite as: 600 U. S. ____ (2023) 3
BARRETT, J., dissenting
subjective ones. So an objective test “complements the ex-
planation for excluding threats of violence from First
Amendment protection in the first place.” United States v.
Jeffries, 692 F. 3d 473, 480 (CA6 2012).
II
The Court agrees that “[t]he existence of a threat depends
not on ‘the mental state of the author,’ but on ‘what the
statement conveys’ to the person on the other end.” Ante,
at 6. And it acknowledges that “[w]hen the statement is
understood as a true threat, all the harms that have long
made threats unprotected naturally follow.” Ibid. None-
theless, the Court holds Colorado’s statute unconstitu-
tional. Why? Because the Court installs a prophylactic
buffer zone to avoid chilling protected speech—a buffer zone
that protects true threats unless the speaker “consciously
disregarded a substantial risk that his communications
would be viewed as threatening violence.” Ante, at 1, 4–5.
That reasoning is flawed.
A
The Court’s first error is awarding true threats “pride of
place among unprotected speech.” Elonis v. United States,
575 U. S. 723, 767 (2015) (THOMAS, J., dissenting). We have
held that nearly every category of unprotected speech may
be regulated using an objective test. In concluding other-
wise, the Court neglects certain cases and misreads others.
Start with fighting words—a category of unprotected
speech that the Court skips past. Fighting words are “per-
sonally abusive epithets” that are “inherently likely to pro-
voke 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
4 COUNTERMAN v. COLORADO
BARRETT, J., dissenting
“fighting words” according to a reasonable-person stand-
ard); 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, de-
ceptive, or misleading” commercial speech. Zauderer v. Of-
fice 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 protec-
tions of the First Amendment,” but “[m]isleading advertis-
ing 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 objec-
tive 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 advertis-
ing is inherently likely to deceive or where the record indi-
cates that a particular form or method of advertising has in
fact been deceptive” (emphasis added)); see also Milavetz,
Gallop & Milavetz, P. A. v. United States, 559 U. S. 229,
250–253 (2010). Thus, the government is “free to prevent
the dissemination of commercial speech that is false, decep-
tive, or misleading,” without regard to whether the speaker
knew that the recipient would be deceived or misled. Zau-
derer, 471 U. S., at 638.
Or take obscenity, which we have long held is “not pro-
tected by the freedoms of speech and press.” Roth v. United
States, 354 U. S. 476, 481 (1957). Speech qualifies as ob-
Cite as: 600 U. S. ____ (2023) 5
BARRETT, J., dissenting
scene if the “ ‘average person, applying contemporary com-
munity standards,’ ” would conclude that “the work, taken
as a whole, appeals to the prurient interest.” Miller v. Cal-
ifornia, 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 sci-
entific value.” Ibid. The speaker’s “ ‘belief as to the obscen-
ity 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 mate-
rials,” 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 dif-
ferent standard for obscenity laws, asserting that “the First
Amendment demands proof of a defendant’s mindset to
make out an obscenity case.” Ante, at 8. By “mindset,” the
Court apparently means that the defendant must have
some awareness that an average person would consider the
materials obscene. But the Court draws this conclusion
from cases rejecting a strict liability standard—for exam-
ple, we have held that the proprietor of a bookstore cannot
be liable for possessing an obscene book unless he knew
what was in it. Smith v. California, 361 U. S. 147, 149, 155
(1959); Mishkin v. New York, 383 U. S. 502, 510–512 (1966);
see also Ginsberg v. New York, 390 U. S. 629, 643–644
(1968).2 Knowing what the material depicts is not the same
as knowing how the average person would react to it—just
——————
2 The Court also cites Elonis v. United States, ante, at 8, 9, n. 4, which
Counterman argues puts a “gloss” on obscenity doctrine, Tr. of Oral Arg.
6–7. While Elonis briefly discusses the necessary mens rea for a convic-
tion under a federal obscenity statute, it does so only in dicta. 575 U. S.
723, 739–740 (2015). Elonis does not alter the doctrinal framework for
assessing the constitutionality of obscenity laws: That case involves true
threats, not obscenity, and it interprets a federal statute, not the Consti-
tution.
6 COUNTERMAN v. COLORADO
BARRETT, J., dissenting
as there is an important difference between Counterman’s
knowledge of what his words meant and his knowledge of
how they would be perceived. Though the Court conflates
the two, our obscenity cases have repeatedly refused to re-
quire the latter as a matter of constitutional law. Hamling,
418 U. S., at 120–123; Rosen v. United States, 161 U. S. 29,
41–42 (1896). So obscenity doctrine does not help Counter-
man.
The Court leans hardest on defamation law, but its argu-
ment depends on a single, cherry-picked strand of the doc-
trine. Yes, New York Times Co. v. Sullivan requires public
figures and public officials to show “actual malice” on a def-
amation claim, and we have defined “actual malice” as
“knowledge that [the statement] was false” or “reckless dis-
regard 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 & Brad-
street, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 760–
761 (1985) (plurality opinion). We have justified that dis-
tinction on the ground that public-figure defamation claims
may deter “would-be critics of official conduct . . . from voic-
ing their criticism,” which would “dampe[n] the vigor and
limit the variety of public debate.” Sullivan, 376 U. S., at
279. Not only that, but “the state interest in protecting”
public figures is weaker, since they tend to “enjoy signifi-
cantly greater access to the channels of effective communi-
cation and hence have a more realistic opportunity to coun-
teract false statements.” Gertz, 418 U. S., at 344. So,
despite what the Court says, Sullivan does not stand for the
broad proposition that the First Amendment “demand[s] a
subjective mental-state requirement.” Ante, at 6. Instead,
it simply raises the bar for borderline unprotected speech
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BARRETT, J., dissenting
with high social value (because of its proximity to public
discourse) and low potential for injury (because public fig-
ures can engage in counterspeech).
Sullivan’s rationale does not justify a heightened mens
rea for true threats. Because true threats are not typically
proximate to debate on matters of public concern, the
Court’s newly erected buffer zone does not serve the end of
protecting heated political commentary. Nor can public fig-
ures 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 Sulli-
van’s own terms.
I will give the Court this much: Speakers must specifi-
cally intend to incite violence before they lose First Amend-
ment 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 dif-
ference. Incitement, as a form of “advocacy,” often arises in
the political arena. See Brandenburg, 395 U. S., at 447 (Ku
Klux Klan rally held to plan a “ ‘marc[h] on Congress’ ”);
Hess, 414 U. S., at 106 (antiwar demonstration); Abrams v.
United States, 250 U. S. 616, 620 (1919) (pamphlets about
the President’s “ ‘shameful, cowardly silence about the in-
tervention in Russia’ ”). A specific intent requirement helps
draw the line between incitement and “political rhetoric ly-
ing at the core of the First Amendment.” NAACP v.
Claiborne Hardware Co., 458 U. S. 886, 926–927 (1982).
The Court does not contend that targeted threats and polit-
ical commentary share a similarly close relationship.
8 COUNTERMAN v. COLORADO
BARRETT, J., dissenting
In sum, our First Amendment precedent does not set a
“baseline ban on an objective standard.” Ante, at 10. Prec-
edent 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 ob-
jective 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 unlaw-
ful violence.” Black, 538 U. S., at 359 (emphasis added).
Speech that is merely “offensive,” “ ‘poorly chosen,’ ” or “un-
popular” 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: unlaw-
ful violence.
Second, the statement must be deemed threatening by a
reasonable listener who is familiar with the “entire factual
context” in which the statement occurs. State v. Taveras,
342 Conn. 563, 572, 271 A. 3d 123, 129 (2022). This inquiry
captures (among other things) the speaker’s tone, the audi-
ence, the medium for the communication, and the broader
exchange in which the statement occurs.3 Each considera-
tion helps weed out protected speech from true threats.
——————
3 Colorado’s test provides a good example. Juries must apply the fol-
lowing nonexhaustive factors to determine whether a statement is a true
threat: “(1) the statement’s role in a broader exchange, if any, including
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BARRETT, J., dissenting
Our decision in Black illustrates the point. There, the
Court considered a Virginia law that prohibited cross burn-
ing “ ‘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 prohibi-
tion on cross burning, concluding that the First Amend-
ment allows the government to ban “a particular type of
threat.” Id., at 362–363. A plurality then went on to ad-
dress the statutory presumption. While cross burning “may
mean that a person is engaging in constitutionally proscrib-
able intimidation,” the plurality reasoned, the act is not
monolithic. Id., at 365. Cross burning could be directed “at
an individual” or “at a group of like-minded believers”; it
could be done “on a neighbor’s lawn” or “at a public rally”;
it could be done with the property owner’s “permission” or
without it. Id., at 366. The presumption “blur[red] the line”
between these different situations and “ignore[d] all of the
contextual factors that are necessary to decide whether a
particular cross burning” was covered by the statute or not.4
——————
surrounding events; (2) the medium or platform through which the state-
ment was communicated, including any distinctive conventions or archi-
tectural features; (3) the manner in which the statement was conveyed
(e.g., anonymously or not, privately or publicly); (4) the relationship be-
tween the speaker and recipient(s); and (5) the subjective reaction of the
statement’s intended or foreseeable recipient(s).” People in the Interest
of R. D., 464 P. 3d 717, 721–722 (Colo. 2020).
4 As JUSTICE SOTOMAYOR emphasizes, ante, at 10, n. 4, the plurality
said that context informs “whether a particular cross burning is intended
to intimidate,” 538 U. S., at 367 (emphasis added). But this was a refer-
ence to the statutory requirements for a conviction, not the constitutional
requirements—the Virginia statute covered only threats made “ ‘with the
intent of intimidating any person or group of persons.’ ” Id., at 348. At
no point did the Court hold that the First Amendment demands specific
intent; on the contrary, it recognized that a statement made “with the
intent of placing the victim in fear of bodily harm or death” is “a type of
10 COUNTERMAN v. COLORADO
BARRETT, J., dissenting
Id., at 365, 367. Thus, the presumption was unconstitution-
ally overbroad.
The Black plurality’s reasoning can be boiled down to the
following insight: When context is ignored, true threats
cannot be reliably distinguished from protected speech.
The reverse also holds: When context is properly consid-
ered, constitutional concerns abate. See, e.g., Watts v.
United States, 394 U. S. 705, 708 (1969) (per curiam) (con-
cluding that a statement was “political hyperbole” instead
of a true threat based on “context,” “the expressly condi-
tional nature of the statement,” and the “reaction of the lis-
teners”).
One more point: Many States have long had statutes like
Colorado’s on the books. See Brief for Illinois et al. as Amici
Curiae 16–17. Before we took this case, the vast majority
of Courts of Appeals and state high courts had upheld these
statutes as constitutional. So objective tests are effectively
the status quo today, yet Counterman still struggles to
identify past prosecutions that came close to infringing on
protected speech. Tr. of Oral Arg. 28–30. The silence is
telling.
C
So is the silence in the historical record. Since 1791, true
threats have been excluded from the “speech” protected by
the First Amendment. R. A.V., 505 U. S., at 382–383, 388.
If Counterman could show that a subjective requirement
has been inherent in the definition of “true threat” since the
founding, he would have a compelling case. But Counter-
man cannot make that showing.
For starters, he produces no evidence directly addressing
the meaning of the First Amendment—nothing from state
ratifying conventions, political commentary, or even early
debates about efforts to regulate threats in ways that might
——————
true threat.” Id., at 360 (emphasis added).
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BARRETT, J., dissenting
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 reg-
ulated 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 in-
tent requirement is the constitutional floor. And because
the legislature is always free to exceed the floor, the enact-
ment of legislation does not necessarily reflect the legisla-
ture’s view of the constitutional minimum.
At the end of the day, then, the best historical case for
Counterman does not add up to much. He is plainly not
asking the Court to enforce a historically sanctioned rule,
but rather to fashion a new one.
D
Even if a subjective test had a historical pedigree, the
Court’s chosen standard of recklessness certainly does not.
12 COUNTERMAN v. COLORADO
BARRETT, J., dissenting
Where does recklessness come from? It was not raised by
the parties. Only the Solicitor General noted this possibil-
ity—and briefly at that. Brief for United States as Amicus
Curiae 28–31. Nor did the courts below address reckless-
ness; indeed, very few courts (of the many that have taken
up the question) have settled on recklessness as the consti-
tutional 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 reck-
lessness as “the right path forward.” Ante, at 11. Its ra-
tionale is, at best, unclear.
The Court begins by acknowledging the “ ‘competing
value[s]’ ” of “free expression” on one hand, and “profound
harms . . . to both individuals and society” on the other.
Ante, at 11–12. But why do these considerations point to
recklessness? A knowledge or purpose standard would al-
low more free expression, so maybe we should go higher.
See ante, at 16 (SOTOMAYOR, J., concurring in part and con-
curring in judgment) (“chilling concerns only further but-
tress 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 bet-
ter. The optimal balance strikes me as a question best left
to the legislature, which could calibrate the mens rea to the
circumstance—for example, higher for the criminal context
and lower for the civil. See Brief for Illinois et al. as Amici
Curiae 28–30 (States “have a range of policy reasons for us-
ing subjective standards for penalizing threats of violence”
and many “choose to require proof of a speaker’s subjective
mental state” in some situations but not others).
Nor does our First Amendment precedent buttress the
Court’s preferred standard. A recklessness requirement
currently applies only to public-figure defamation claims.
Incitement to violence calls for more. Fighting words, pri-
vate-figure defamation, false commercial speech, and ob-
scenity require less. I fail to see why, of all these categories
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BARRETT, J., dissenting
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: Reck-
lessness 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 ham-
mer of criminal punishment. See ante, at 12; ante, at 14–
15, 20–21 (opinion of SOTOMAYOR, J.). While an objective
test is “a familiar feature of civil liability in tort law,” the
“ ‘conventional requirement for criminal conduct’ ” is
“ ‘awareness of some wrongdoing.’ ” Elonis, 575 U. S., at
737–738. In keeping with this convention, we generally
presume that “federal criminal statutes that are silent on
the required mental state” nonetheless impose the “mens
rea which is necessary to separate wrongful conduct from
otherwise innocent conduct.” Id., at 736 (internal quotation
marks omitted). That is why we rejected an objective stand-
ard for the federal threat prohibition, 18 U. S. C. §875(c).
575 U. S., at 737–739. It is “the threatening nature of the
communication” that “makes the conduct ‘wrongful’ ”; thus,
the statute is best interpreted to require that the defendant
be aware of the impact of his speech. Id., at 737.
But this case is about the scope of the First Amendment,
not the interpretation of a criminal statute. Accordingly,
the Court’s holding affects the civil consequences for true
threats just as much as it restricts criminal liability. And
the civil context underscores the danger of adopting a Sul-
livan-style buffer zone for true threats.
Consider, for example, threat victims who seek restrain-
ing 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,
14 COUNTERMAN v. COLORADO
BARRETT, J., dissenting
soaked in blood and dying from all the little cuts”). Civil
orders can also keep individuals away from particular geo-
graphic 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 loca-
tion in question—for good reason. Yet after today, such or-
ders cannot be obtained without proof—not necessarily
easy to secure—that the person who issued the threat an-
ticipated that it would elicit fear. See Tr. of Oral Arg. 92–
93.
The government can also opt to counteract true threats
by means of civil enforcement actions. For instance, 18
U. S. C. §248 prohibits “threat[s] of force” against any per-
son “obtaining or providing reproductive health services” or
“seeking to exercise the First Amendment right of religious
freedom at a place of religious worship.” The statute im-
poses a range of civil penalties, and it allows enforcement
suits by both private persons and government officials. See,
e.g., United States v. Dillard, 795 F. 3d 1191, 1196–1197
(CA10 2015) (Government brought §248 action after de-
fendant warned a health provider, “[y]ou will be checking
under your car everyday—because maybe today is the day
someone places an explosive under it”); McCullen v. Coak-
ley, 573 U. S. 464, 491 (2014) (noting that several States
have similar laws). After today, these civil enforcement ac-
tions face a higher constitutional hurdle.
In addition, employers and school administrators often
discipline individuals who make true threats. Consider the
student who was expelled after “draft[ing] two violent,
misogynic, and obscenity-laden rants expressing a desire to
molest, rape, and murder” his ex-girlfriend. Doe v. Pulaski
Cty. Special School Dist., 306 F. 3d 616, 619 (CA8 2002) (en
banc). Or the one who was suspended after “ ‘talking about
taking a gun to school’ to ‘shoot everyone he hates.’ ”
Cite as: 600 U. S. ____ (2023) 15
BARRETT, J., dissenting
D. J. M. v. Hannibal Public School Dist. No. 60, 647 F. 3d
754, 758 (CA8 2011); Lovell v. Poway Unified School Dis-
trict, 90 F. 3d 367, 369, 372–373 (CA9 1996) (similar);
Haughwout v. Tordenti, 332 Conn. 559, 561–562, 211 A. 3d
1, 3–4 (2019) (similar). True threats can also be expressed
by a parent, a teacher, or an employee in another context
altogether. See, e.g., Taveras, 342 Conn., at 567–569, 578,
271 A. 3d, at 126–128, 133 (parent); Smith v. New York City
Dept. of Ed., 109 App. Div. 3d 701, 702–703, 972 N. Y. S. 2d
221, 222 (2013) (teacher); Diggs v. St. Louis, 613 S. W. 3d
858, 862, 864 (Mo. App. 2020) (correctional officer).
Barring some reason why the speech receives lesser con-
stitutional protection, e.g., Mahanoy Area School Dist. v.
B. L., 594 U. S. ___, ___–___ (2021) (slip op., at 4–5), the
Court’s new rule applies to all of these situations. That can
make all the difference in some cases. A delusional speaker
may lack awareness of the threatening nature of her
speech; a devious speaker may strategically disclaim such
awareness; and a lucky speaker may leave behind no evi-
dence of mental state for the government to use against her.
The Court’s decision thus sweeps much further than it lets
on.
* * *
The bottom line is this: Counterman communicated true
threats, which, “everyone agrees, lie outside the bounds of
the First Amendment’s protection.” Ante, at 4. He knew
what the words meant. Those threats caused the victim to
fear for her life, and they “upended her daily existence.”
Ante, at 2. Nonetheless, the Court concludes that Counter-
man can prevail on a First Amendment defense. Nothing
in the Constitution compels that result. I respectfully dis-
sent.