Counterman v. Colorado

Summary

To establish that a statement is a “true threat” unprotected by the First Amendment, the State must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.

Text

PRELIMINARY PRINT 
Volume 600 U. S. Part 1 
Pages 66–121 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
June 27, 2023 
REBECCA A. WOMELDORF 
reporter of decisions 
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NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
[email protected], of any typographical or other formal errors.

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66 OCTOBER TERM, 2022 
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 violent 
harm befalling her. Counterman's messages put C. W. in fear and up-
ended her daily existence: C. W. stopped walking alone, declined social 
engagements, and canceled some of her performances. C. W. eventually 
contacted the authorities. The State charged Counterman under a Col-
orado 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. Fol-
lowing Colorado law, the trial court rejected that argument under an 
objective standard, fnding that a reasonable person would consider the 
messages threatening. Counterman appealed, arguing 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 threat-
ening character. The Colorado Court of Appeals disagreed and af-
frmed 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. 72–83. 
(a) The First Amendment permits restrictions upon the content of 
speech in a few limited areas. Among these historic and traditional 
categories of unprotected expression is true threats. True threats are 
“serious expression[s]” conveying that a speaker means to “commit an 
act of unlawful violence.” Virginia v. Black, 538 U. S. 343, 359. The 
existence of a threat depends not on “the mental state of the author,” 
but on “what the statement conveys” to the person on the receiving end. 
Elonis v. United States, 575 U. S. 723, 733. Yet the First Amendment 
may still demand a subjective mental-state requirement shielding some

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Syllabus 
true threats from liability. That is because bans on speech have the 
potential to chill, or deter, speech outside their boundaries. An impor-
tant 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 prece-
dent concerning the most prominent categories of unprotected speech. 
Gertz v. Robert Welch, Inc., 418 U. S. 323, 342. With regard to defama-
tion, a public fgure 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 conduct. 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 mistak-
ing 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 prosecu-
tions chill too much protected, non-threatening expression. Pp. 73–78. 
(b) In this context, a recklessness standard—i. e., a showing that a 
person “consciously disregard[ed] a substantial [and unjustifable] 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 reckless-
ness standard also fts with this Court's defamation decisions, which 
adopted a recklessness rule more than a half-century ago. The Court 
sees no reason to offer greater insulation to threats than to defamation. 
While this Court's incitement decisions demand more, the reason for 
that demand—the need to protect from legal sanction the political advo-
cacy a hair's-breadth away from incitement—is not present here. For 
true threats, recklessness strikes the right balance, offering “enough 
`breathing space' for protected speech,” without sacrifcing too many of 
the benefts of enforcing laws against true threats. Elonis, 575 U. S., 
at 748. Pp. 78–82. 
(c) The State prosecuted Counterman in accordance with an objective 
standard and did not have to show any awareness on Counterman's part 
of his statements' threatening character. That is a violation of the 
First Amendment. Pp. 82–83.

68 COUNTERMAN v. COLORADO 
Syllabus 
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., fled 
an opinion concurring in part and concurring in the judgment, in which 
Gorsuch, J., joined as to Parts I, II, III–A, and III–B, post, p. 83. 
Thomas, J., fled a dissenting opinion, post, p. 105. Barrett, J., fled a 
dissenting opinion, in which Thomas, J., joined, post, p. 106. 
John P . Elwood argued the cause for petitioner. With 
him on the briefs were Anthony J. Franze, Kolya D. Glick, 
William T. Sharon, and Mackenzie Shields. 
Philip J. Weiser, Attorney General of Colorado, argued the 
cause for respondent. With him on the brief were Eric R. 
Olson, Solicitor General, Jillian J. Price, Deputy Attorney 
General, Joseph G. Michaels, Assistant Solicitor General, 
Helen Norton, Special Assistant Attorney General, and 
Talia Kraemer, Assistant Attorney General. 
Deputy Solicitor General Feigin argued the cause for the 
United States as amicus curiae urging affrmance. With 
him on the brief were Solicitor General Prelogar, Assistant 
Attorney General Polite, Nicole Frazer Reaves, and Paul 
T. Crane.* 
*Briefs of amici curiae urging reversal were fled for the American 
Civil Liberties Union et al. by Brian M. Hauss, Ben Wizner, David D. 
Cole, Mark Silverstein, Sara R. Neel, David A. Schulz, Barbara E. Berg-
man, and Eric M. Freedman; for the Cato Institute et al. by Jay R. 
Schweikert and John W. Whitehead; for the Electronic Frontier Founda-
tion et al. by David Greene; for the Reporters Committee for Freedom of 
the Press by Bruce D. Brown; and for Elena Cordonean et al. by Norman 
M. Garland and Michael M. Epstein, both pro se. 
Briefs of amici curiae urging affrmance were fled for the State of 
Illinois et al. by Kwame Raoul, Attorney General of Illinois, Jane Elinor 
Notz, Solicitor General, Alex Hemmer, Deputy Solicitor General, Priy-
anka Gupta, Assistant Attorney General, and Patrick J. Griffn, Chief 
State's Attorney of Connecticut, and by the Attorneys General for their 
respective jurisdictions as follows: Treg Taylor of Alaska, Kris Mayes 
of Arizona, Kathleen Jennings of Delaware, Brian L. Schwalb of the Dis-
trict of Columbia, Anne E. Lopez of Hawaii, Brenna Bird of Iowa, Aaron 
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Opinion of the Court 
Justice Kagan delivered the opinion of the Court. 
True threats of violence are outside the bounds of First 
Amendment protection and punishable as crimes. Today we 
consider a criminal conviction for communications falling 
within that historically unprotected category. The question 
presented is whether the First Amendment still requires 
proof that the defendant had some subjective understanding 
of the threatening nature of his statements. We hold that 
it does, but that a mental state of recklessness is suffcient. 
The State must show that the defendant consciously disre-
garded a substantial risk that his communications would be 
viewed as threatening violence. The State need not prove 
any more demanding form of subjective intent to threaten 
another. 
M. Frey of Maine, Andrea Joy Campbell of Massachusetts, Dana Nessel 
of Michigan, Lynn Fitch of Mississippi, Aaron D. Ford of Nevada, John 
M. Formella of New Hampshire, Matthew J. Platkin of New Jersey, Raúl 
Torrez of New Mexico, Joshua H. Stein of North Carolina, Dave Yost of 
Ohio, Ellen F. Rosenblum of Oregon, Michelle A. Henry of Pennsylvania, 
Marty Jackley of South Dakota, Jonathan Skrmetti of Tennessee, Sean 
D. Reyes of Utah, Charity R. Clark of Vermont, Jason S. Miyares of 
Virginia, and Bridget Hill of Wyoming; for the Criminal Justice Legal 
Foundation by Kent S. Scheidegger and Kymberlee C. Stapleton; for First 
Amendment Scholars by Jeffrey A. Mandell and Erin K. Deeley; for First 
Amendment Scholars by Charlotte H. Taylor; for the Lawyers' Committee 
for Civil Rights Under Law et al. by Damon Hewitt, Jon Greenbaum, 
Dariely Rodriguez, David Brody, Marc Epstein, and Anthony D. Mire-
nda; for Legal Momentum et al. by Mary-Christine Sungaila and Lynn 
Hecht Schafran; for the National Family Violence Law Center et al. by 
David B. Salmons, Jonathan M. Albano, Stephanie Schuster, and Joan S. 
Meier; and for Coles Whalen by Allyson N. Ho, Bradley G. Hubbard, and 
Paul G. Cassell. 
Briefs of amici curiae were fled for the Alliance Defending Freedom 
by John J. Bursch, Tyson C. Langhofer, and Travis C. Barham; for the 
Foundation for Individual Rights and Expression by Darpana M. Sheth; 
for Human Rights for Kids by John H. Fleming, Suzanne S. La Pierre, 
James Dold, Adam C. Pollet, Joel E. Hoffman, and Daniel Morris; and 
for Jack Jordan by Mr. Jordan, pro se.

70 COUNTERMAN v. COLORADO 
Opinion of the Court 
I 
From 2014 to 2016, petitioner Billy Counterman sent hun-
dreds of Facebook messages to C. W., a local singer and musi-
cian. The two had never met, and C. W. never responded. 
In fact, she repeatedly blocked Counterman. But each time, 
he created a new Facebook account and resumed his con-
tacts. Some of his messages were utterly prosaic (“Good 
morning sweetheart”; “I am going to the store would you 
like anything?”)—except that they were coming from a total 
stranger. 3 App. 465. Others suggested that Counterman 
might be surveilling C. W. He asked “[w]as that you in the 
white Jeep?”; referenced “[a] fne display with your partner”; 
and noted “a couple [of] physical sightings.” 497 P. 3d 1039, 
1044 (Colo. App. 2021). And most critically, a number ex-
pressed anger at C. W. and envisaged harm befalling her: 
“Fuck off permanently.” Ibid. “Staying in cyber life is 
going to kill you.” Ibid. “You're not being good for human 
relations. Die.” Ibid. 
The messages put C. W. in fear and upended her daily ex-
istence. She believed that Counterman was “threat[ening 
her] life”; “was very fearful that he was following” her; and 
was “afraid [she] would get hurt.” 2 App. 177, 181, 193. As 
a result, she had “a lot of trouble sleeping” and suffered from 
severe anxiety. Id., at 200; see id., at 194–198. She stopped 
walking alone, declined social engagements, and canceled 
some of her performances, though doing so caused her fnan-
cial strain. See id., at 182–183, 199, 201–206, 238–239. 
Eventually, C. W. decided that she had to contact the authori-
ties. Id., at 184. 
Colorado charged Counterman under a statute making it 
unlawful to “[r]epeatedly . . . make[ ] any form of communica-
tion 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 
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evidence the State proposed to introduce at trial were his 
Facebook messages.1 
Counterman moved to dismiss the charge on First Amend-
ment 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 as-
sessed the true-threat issue using an “objective `reasonable 
person' standard.” People v. Cross, 127 P. 3d 71, 76 (Colo. 
2006). Under that standard, the State had to show that a 
reasonable person would have viewed the Facebook mes-
sages as threatening. By contrast, the State had no need to 
prove that Counterman had any kind of “subjective intent to 
threaten” C. W. In re R. D., 464 P. 3d 717, 731, n. 21 (Colo. 
2020). The court decided, after “consider[ing] the totality 
of the circumstances,” that Counterman's statements “r[o]se 
to the level of a true threat.” 497 P. 3d, at 1045. Because 
that was so, the court ruled, the First Amendment posed no 
bar to prosecution. The court accordingly sent the case to 
the jury, which found Counterman guilty as charged. 
The Colorado Court of Appeals affrmed. Counterman 
had urged the court to hold that the First Amendment re-
quired the State to show that he was aware of the threaten-
ing nature of his statements. Relying on its precedent, the 
court turned the request down: It “decline[d] today to say 
that a speaker's subjective intent to threaten is necessary” 
under the First Amendment to procure a conviction for 
threatening communications. Id., at 1046 (quoting R. D., 464 
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 
its case solely on Counterman's “[r]epeated[ ] . . . communication[s]” with 
C. W. Ibid. 
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72 COUNTERMAN v. COLORADO 
Opinion of the Court 
P. 3d, at 731, n. 21). Using the established objective stand-
ard, the court then approved the trial court's ruling that 
Counterman's messages were “true threats” and so were not 
protected by the First Amendment. 497 P. 3d, at 1050. 
The Colorado Supreme Court denied review. 
Courts are divided about (1) whether the First Amend-
ment requires proof of a defendant's subjective mindset in 
true-threats cases, and (2) if so, what mens rea standard is 
suffcient. 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 frst 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 Colo-
rado argues that there is no such requirement. Counterman 
contends that there is one, based mainly on the likelihood 
that the absence of such a mens rea requirement will chill 
2 A preliminary clarifcation 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 omitted). 
The question in this case arises when the defendant (unlike in those hypo-
theticals) understands the content of the words, but may not grasp that 
others would fnd them threatening. Must he do so, under the First 
Amendment, for a true-threats prosecution to succeed? 
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protected, non-threatening speech. Counterman's view, we 
decide today, is the more consistent with our precedent. To 
combat the kind of chill he references, our decisions have 
often insisted on protecting even some historically unpro-
tected 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 defend-
ant had some understanding of his statements' threatening 
character. The second issue here concerns what precise 
mens rea standard suffces 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 re-
quire that the State prove the defendant had any more spe-
cifc intent to threaten the victim. 
A 
“From 1791 to the present,” the First Amendment has 
“permitted restrictions upon the content of speech in a few 
limited areas.” United States v. Stevens, 559 U. S. 460, 468 
(2010). These “historic and traditional categories” are “long 
familiar to the bar” and perhaps, too, the general public. 
Ibid. One is incitement—statements “directed [at] pro-
ducing imminent lawless action,” and likely to do so. Bran-
denburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam ). 
Another is defamation—false statements of fact harming 
another's reputation. See Gertz v. Robert Welch, Inc., 418 
U. S. 323, 340, 342 (1974). Still a third is obscenity—value-
less material “appeal[ing] to the prurient interest” and de-
scribing “sexual conduct” in “a patently offensive way.” 
Miller v. California, 413 U. S. 15, 24 (1973). This Court has 
“often described [those] historically unprotected categories 
of speech as being of such slight social value as a step to 
truth that any beneft that may be derived from them is 
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74 COUNTERMAN v. COLORADO 
Opinion of the Court 
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,” 
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 conveys” 
to the person on the other end. Ibid. When the statement 
is understood as a true threat, all the harms that have long 
made threats unprotected naturally follow. True threats 
subject individuals to “fear of violence” and to the many 
kinds of “disruption that fear engenders.” Black, 538 U. S., 
at 360 (internal quotation marks omitted). The facts of this 
case well illustrate how.
3 
3 The concurrence relies on Virginia v. Black, 538 U. S. 343 (2003), to 
argue that the category of true threats itself incorporates a mens rea 
element. See post, at 90–93, 96 (Sotomayor, J., concurring in part and 
concurring in judgment). But that claim is based on a misreading. The 
statements the concurrence quotes merely refect that the statute involved 
in the case required a showing of intent. Black did not address whether 
the First Amendment demands such a showing, or why it might do so. 
See United States v. Jeffries, 692 F. 3d 473, 479–480 (CA6 2012) (Sutton, 
J.); see also post, at 114–115, and n. 4 (Barrett, J., dissenting) (explaining 
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Yet the First Amendment may still demand a subjective 
mental-state requirement shielding some true threats from 
liability. The reason relates to what is often called a chilling 
effect. Prohibitions on speech have the potential to chill, or 
deter, speech outside their boundaries. A speaker may be 
unsure about the side of a line on which his speech falls. Or 
he may worry that the legal system will err, and count 
speech that is permissible as instead not. See Philadelphia 
Newspapers, Inc. v. Hepps, 475 U. S. 767, 777 (1986). Or he 
may simply be concerned about the expense of becoming en-
tangled in the legal system. The result is “self-censorship” 
of speech that could not be proscribed—a “cautious and re-
strictive exercise” of First Amendment freedoms. Gertz, 
418 U. S., at 340. And an important tool to prevent that 
outcome—to stop people from steering “wide[ ] of the unlaw-
ful zone”—is to condition liability on the State's showing of 
a culpable mental state. Speiser v. Randall, 357 U. S. 513, 
526 (1958). Such a requirement comes at a cost: It will 
shield some otherwise proscribable (here, threatening) 
speech because the State cannot prove what the defendant 
thought. But the added element reduces the prospect of 
chilling fully protected expression. As this Court has 
noted, the requirement lessens “ the hazard of self-
censorship” by “compensat[ing]” for the law's uncertainties. 
Mishkin v. New York, 383 U. S. 502, 511 (1966). Or said 
a bit differently: “[B]y reducing an honest speaker's fear 
that he may accidentally [or erroneously] incur liability,” a 
mens rea requirement “provide[s] `breathing room' for more 
valuable speech.” Alvarez, 567 U. S., at 733 (Breyer, J., 
concurring in judgment). 
That kind of “strategic protection” features in our prece-
dent concerning the most prominent categories of histori-
cally unprotected speech. Gertz, 418 U. S., at 342. Defama-
that Black concerned a different part of the statute, preventing consider-
ation of contextual factors in assessing whether a statement was a threat). 
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76 COUNTERMAN v. COLORADO 
Opinion of the Court 
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., at 
718–719 (plurality opinion). Yet a public fgure 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 
Garrison v. Louisiana, 379 U. S. 64, 74 (1964) (using the 
same standard for criminal libel). That rule is based on fear 
of “self-censorship”—the worry that without such a subjec-
tive mental-state requirement, the uncertainties and ex-
pense of litigation will deter speakers from making even 
truthful statements. Sullivan, 376 U. S., at 279. The First 
Amendment, we have concluded, “requires that we protect 
some falsehood in order to protect speech that matters.” 
Gertz, 418 U. S., at 341. 
The same idea arises in the law respecting obscenity and 
incitement to unlawful conduct. Like threats, incitement in-
heres 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 deter-
ring “mere advocacy” of illegal acts—a kind of speech fall-
ing within the First Amendment's core. Brandenburg, 395 
U. S., at 449. And for a similar reason, the First Amend-
ment demands proof of a defendant's mindset to make out an 
obscenity case. Obscenity is obscenity, whatever the pur-
veyor's mental state. But we have repeatedly recognized 
that punishment depends on a “vital element of scienter”— 
often described as the defendant's awareness of “the charac-
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ter and nature” of the materials he distributed. Hamling v. 
United States, 418 U. S. 87, 122–123 (1974); see Elonis, 575 
U. S., at 739 (reiterating Hamling). The rationale should by 
now be familiar. Yes, “obscene speech and writings are not 
protected.” Smith v. California, 361 U. S. 147, 152 (1959). 
But punishing their distribution without regard to scienter 
would “have the collateral effect of inhibiting” protected ex-
pression. Id., at 151. Given “the ambiguities inherent in 
the defnition of obscenity,” the First Amendment “requires 
proof of scienter to avoid the hazard of self-censorship.” 
Mishkin, 383 U. S., at 511.
4 
The same reasoning counsels in favor of requiring a subjec-
tive element in a true-threats case. This Court again must 
consider the prospect of chilling non-threatening expression, 
given the ordinary citizen's predictable tendency to steer 
4 The dissent, in urging an objective standard here, reads the obscenity 
decisions as requiring merely that the defendant know “what the material 
depicts” (as a speaker must know a communication's contents). Post, at 
110–111 (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 materi-
als,] not simply [their] contents.” Elonis, 575 U. S., at 739–740 (discussing 
Hamling, 418 U. S., at 120–123, and Mishkin, 383 U. S., at 510). 
The dissent's use of two other First Amendment categories—fghting 
words and false commercial speech—to support an objective test also falls 
fat. See post, at 109–110 (opinion of Barrett, J.). This Court has not 
upheld a conviction under the fghting-words doctrine in 80 years. At the 
least, that doctrine is today a poor candidate for spinning off other First 
Amendment rules. False commercial speech is also a poor analog, though 
for different reasons. Put aside that the line of cases the dissent invokes 
has never been listed among the historically unprotected categories of 
speech. See, e. g., United States v. Stevens, 559 U. S. 460, 468 (2010); see 
supra, at 73–74. Yet more relevant, the Court has often noted that com-
mercial 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 require-
ments in the context of unprotected speech.

78 COUNTERMAN v. COLORADO 
Opinion of the Court 
“wide[ ] of the unlawful zone.” Speiser, 357 U. S., at 526. 
The speaker's fear of mistaking whether a statement is a 
threat; his fear of the legal system getting that judgment 
wrong; his fear, in any event, of incurring legal costs—all 
those may lead him to swallow words that are in fact not 
true threats. Some 50 years ago, Justice Marshall made the 
point when reviewing a true-threats prosecution arguably 
involving only political hyperbole. See Rogers v. United 
States, 422 U. S. 35 (1975). The Court in Rogers reversed 
the conviction on other grounds, but Justice Marshall focused 
on the danger of deterring non-threatening speech. An ob-
jective standard, turning only on how reasonable observers 
would construe a statement in context, would make people 
give threats “a wide berth.” Id., at 47 (concurring opinion). 
And so use of that standard would discourage the “uninhib-
ited, robust, and wide-open debate that the First Amend-
ment is intended to protect.” Id., at 48 (quoting Sullivan, 
376 U. S., at 270). 
The reasoning—and indeed some of the words—came 
straight from this Court's decisions insisting on a subjective 
element in other unprotected-speech cases, whether 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 opinion 
discusses. But the ban on an objective standard remains 
the same, lest true-threats prosecutions chill too much pro-
tected, 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 hardest 
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to prove. A person acts purposefully when he “consciously 
desires” a result—so here, when he wants his words to be 
received as threats. United States v. Bailey, 444 U. S. 394, 
404 (1980). Next down, though not often distinguished from 
purpose, is knowledge. Ibid. A person acts knowingly 
when “he is aware that [a] result is practically certain to 
follow”—so here, when he knows to a practical certainty that 
others will take his words as threats. Ibid. (internal quota-
tion marks omitted). A greater gap separates those two 
from recklessness. A person acts recklessly, in the most 
common formulation, when he “consciously disregard[s] a 
substantial [and unjustifable] risk that the conduct will 
cause harm to another.” Voisine v. United States, 579 U. S. 
686, 691 (2016) (internal quotation marks omitted). That 
standard involves insuffcient concern with risk, rather than 
awareness of impending harm. See Borden v. United 
States, 593 U. S. –––, ––– (2021) (plurality opinion). But still, 
recklessness is morally culpable conduct, involving a “delib-
erate decision to endanger another.” Voisine, 579 U. S., at 
694. In the threats context, it means that a speaker is 
aware “that others could regard his statements as” threaten-
ing violence and “delivers them anyway.” Elonis, 575 U. S., 
at 746 (Alito, J., concurring in part and dissenting in part).
5 
Among those standards, recklessness offers the right path 
forward. We have so far mostly focused on the constitu-
tional interest in free expression, and on the correlative need 
5 Just to complete the mens rea hierarchy, the last level is negligence— 
but that is an objective standard, of the kind we have just rejected. A 
person acts negligently if he is not but should be aware of a substantial 
risk—here, that others will understand his words as threats. See Borden, 
593 U. S., at ––– (plurality opinion). That makes liability depend not on 
what the speaker thinks, but instead on what a reasonable person would 
think about whether his statements are threatening in nature. See 
Elonis, 575 U. S., at 738 (“Having liability turn on whether a reasonable 
person regards the communication as a threat—regardless of what the 
defendant thinks—reduces culpability . . . to negligence” (internal quota-
tion marks omitted)). 
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80 COUNTERMAN v. COLORADO 
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to take into account threat prosecutions' chilling effects. 
But the precedent we have relied on has always recog-
nized—and insisted on “accommodat[ing]”—the “competing 
value[ ]” in regulating historically unprotected expression. 
Gertz, 418 U. S., at 348. Here, as we have noted, that value 
lies in protecting against the profound harms, to both indi-
viduals and society, that attend true threats of violence—as 
evidenced in this case. See supra, at 70, 74. The injury 
associated with those statements caused history long ago to 
place them outside the First Amendment's bounds. When 
despite that judgment we require use of a subjective mental-
state standard, we necessarily impede some true-threat 
prosecutions. And as we go up the subjective mens rea lad-
der, that imposition on States' capacity to counter true 
threats becomes still greater—and, presumably, with dimin-
ishing returns for protected expression. In advancing past 
recklessness, we make it harder for a State to substantiate 
the needed inferences about mens rea (absent, as is usual, 
direct evidence). And of particular importance, we prevent 
States from convicting morally culpable defendants. See 
Elonis, 575 U. S., at 745 (opinion of Alito, J.). For reckless 
defendants have done more than make a bad mistake. They 
have consciously accepted a substantial risk of inficting seri-
ous harm. 
Using a recklessness standard also fts with the analysis 
in our defamation decisions. As noted earlier, the Court 
there adopted a recklessness rule, applicable in both civil 
and criminal contexts, as a way of accommodating competing 
interests. See supra, at 75–76. In the more than half-
century in which that standard has governed, few have 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 
Elonis, 575 U. S., at 748 (opinion of Alito, J.). The societal 
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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 offcials and 
fgures). 
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 specifc 
intent, presumably equivalent to purpose or knowledge. 
See Hess, 414 U. S., at 109; supra, at 76. In doing so, we 
recognized that incitement to disorder is commonly a hair's-
breadth away from political “advocacy”—and particularly 
from strong protests against the government and prevailing 
social order. Brandenburg, 395 U. S., at 447. Such protests 
gave rise to all the cases in which the Court demanded a 
showing of intent. See ibid.; Hess, 414 U. S., at 106; Clai-
borne 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 advo-
cacy 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 dis-
senting political speech at the First Amendment's core. But 
the potency of that protection is not needed here. For the 
most part, the speech on the other side of the true-threats 
boundary line—as compared with the advocacy addressed in 
our incitement decisions—is neither so central to the theory 
of the First Amendment nor so vulnerable to government 
prosecutions. It is not just that our incitement decisions are

82 COUNTERMAN v. COLORADO 
Opinion of the Court 
distinguishable; it is more that they compel the use of a dis-
tinct standard here. 6 
That standard, again, is recklessness. It offers “enough 
`breathing space' for protected speech,” without sacrifcing 
too many of the benefts 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 declin-
ing one of those two alternative paths, something more im-
portant is gained: Not “having it all”—because that is impos-
sible—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 stand-
ard. See supra, at 71–72. The State had to show only that 
a reasonable person would understand his statements 
as threats. It did not have to show any awareness on 
his part that the statements could be understood that way. 
For the reasons stated, that is a violation of the First 
Amendment. 
6 Our obscenity decisions are of no help in this inquiry, because the Court 
has never determined the precise mens rea needed to impose punishment. 
In arguing to the contrary, the concurrence relies mainly on Hamling. 
Post, at 100 (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 77, n. 4, the concurrence is wrong in suggesting that 
it required use of a purpose or knowledge standard. As to the concur-
rence's claim, Hamling held only that a statute with that standard was 
“constitutionally suffcient.” 418 U. S., at 123. The decision said nothing 
about whether it was constitutionally necessary, or instead whether a 
recklessness standard would suffce as well. 
7 The dissent accuses the Court of making a “Goldilocks judgment” in 
favoring a recklessness standard. Post, at 118 (opinion of Barrett, J.). 
But in law, as in life, there are worse things than being “just right.” 
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We accordingly vacate the judgment of the Colorado Court 
of Appeals and remand the case for further proceedings not 
inconsistent with this opinion. 
It is so ordered. 
Justice Sotomayor, with whom Justice Gorsuch joins 
as to Parts I, II, III–A, and III–B, concurring in part and 
concurring in the judgment. 
When the government seeks to punish speech based on its 
content, the First Amendment typically imposes stringent 
requirements. This ensures that the government, even 
when pursuing compelling objectives, does not unduly bur-
den our Nation's commitment to free expression. “From 
1791 to the present, however, the First Amendment has per-
mitted restrictions upon the content of speech in a few lim-
ited areas.” United States v. Stevens, 559 U. S. 460, 468 
(2010) (internal quotation marks omitted). These categories 
must be “well-defned and narrowly limited” in light of the 
serious consequences that fow 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 tradi-
tion of criminalizing threats stretching back centuries. This 
includes punishing single utterances based on the message 
conveyed. One paradigmatic example of this would be writ-
ing and mailing a letter threatening to assassinate the Presi-
dent. Such laws are plainly important. There is no long-
standing tradition, however, of punishing speech merely 
because it is unintentionally threatening. Instead, this 
Court's precedent, along with historical statutes and cases, 
refect a commonsense understanding that threatening some-
one is an intentional act. As to what intent is needed, “[t]ra-
ditionally, one intends certain consequences when he desires 
that his acts cause those consequences or knows that those 
consequences are substantially certain to result from his 
acts.” Tison v. Arizona, 481 U. S. 137, 150 (1987) (internal 
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84 COUNTERMAN v. COLORADO 
Opinion of Sotomayor, J. 
quotation marks omitted). This does not require showing 
that an individual intends to carry through with the threat. 
But it does require showing that an individual desires to 
threaten or is substantially certain that her statements will 
be understood as threatening. 
Today, unfortunately, the Court unnecessarily departs 
from this traditional understanding. That is not to say that 
I disagree with the Court on everything. Far from it. I 
join the Court's conclusion that some subjective mens rea 
is required in true-threats cases. I also agree that in this 
particular case, where petitioner was prosecuted for stalking 
that involved threatening statements, a mens rea of reckless-
ness is amply suffcient. Where I part ways with the Court 
is that I would not reach the distinct and more complex ques-
tion whether a mens rea of recklessness is suffcient for true-
threats prosecutions generally. Further, requiring nothing 
more than a mens rea of recklessness is inconsistent with 
precedent, history, and the commitment to even harmful 
speech that the First Amendment enshrines. I therefore 
respectfully concur only in part and in the judgment. 
I 
As an initial matter, I do not believe that this Court should 
reach the question whether recklessness is suffcient for 
true-threats prosecutions. A key conceptual distinction is 
helpful for explaining why. On the one hand, there are 
statements that are objectively threatening. In some cases, 
such statements can be punished because they fall into the 
unprotected category of “true threats.” Yet such state-
ments can also be punished if they fall into another category 
of unprotected speech, such as speech integral to criminal 
conduct. Or they might warrant less First Amendment 
protection for other reasons. On the other hand, there is 
the question of what constitutes the well-defned and long-
standing category of unprotected true threats. It is with 
this latter question that I do not see the need to address 
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whether a mens rea of recklessness is suffcient across the 
board. 
First, the courts below did not address whether reckless-
ness was suffcient to prosecute true threats and neither of 
the actual parties have advocated a recklessness standard. 
Colorado disclaimed the idea that recklessness was required, 
and petitioner asserted, correctly, that recklessness had not 
been raised under traditional principles of party presenta-
tion. The briefng on recklessness consists almost entirely 
of a few pages of an argument in the alternative at the tail 
end of an amicus brief fled by the United States. 
Second, because petitioner was prosecuted for stalking in-
volving threatening speech, this case does not require resort 
to the true-threats exemption to the First Amendment. 
True-threats doctrine covers content-based prosecutions 
for single utterances of “pure speech,” which need not even 
be communicated to the subject of the threat. Watts v. 
United States, 394 U. S. 705, 707 (1969) (per curiam ). The 
First Amendment would normally place strict limits on such 
prosecutions. So there is typically a need to determine 
whether the speech in question falls within the traditionally 
unprotected category of true threats. 
This is not such a case, however. Petitioner was convicted 
for “stalking [causing] serious emotional distress” for a com-
bination of threatening statements and repeated, unwanted, 
direct contact with C. W. 497 P. 3d 1039, 1043 (Colo. App. 
2021).
1 This kind of prosecution raises fewer First Amend-
ment concerns for a variety of reasons. Stalking can be car-
ried 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 
1 The statute of conviction applies to someone who “[r]epeatedly follows, 
approaches, contacts, places under surveillance, or makes any form of com-
munication with another person . . . in a manner that would cause a reason-
able person to suffer serious emotional distress and does cause that person 
. . . serious emotional distress.” Colo. Rev. Stat. § 18–3–602(1)(c) (2022).

86 COUNTERMAN v. COLORADO 
Opinion of Sotomayor, J. 
Rights, Inc., 547 U. S. 47, 62 (2006). The content of the re-
peated communications can sometimes be irrelevant, such as 
persistently calling someone and hanging up, or a stream of 
“utterly prosaic” communications. Ante, at 70. Repeat-
edly forcing intrusive communications directly into the per-
sonal life of “an unwilling recipient” also enjoys less protec-
tion. Rowan v. Post Offce Dept., 397 U. S. 728, 738 (1970). 
Finally, while there is considerable risk with a single intem-
perate utterance that a speaker will “accidentally or errone-
ously incur liability,” ante, at 75 (internal quotation marks and 
alterations omitted), that risk is far reduced with a course of 
repeated unwanted contact. Take, for example, petitioner 
continuously contacting C. W. despite her blocking him. 
Given this, prosecuting threatening statements made as 
part of a course of stalking does not squarely present the 
hardest questions about the mens rea required to prosecute 
isolated utterances based solely on their content.
2 True-
threats doctrine came up below only because of the lower 
courts' doubtful assumption that petitioner could be prose-
cuted only if his actions fell under the true-threats exception. 
I do not think that is accurate, given the lessened First 
Amendment concerns at issue. In such cases, recklessness 
is amply suffcient. And I would stop there. There is sim-
ply no need to reach out in this stalking case to determine 
whether anything more than recklessness is needed for pun-
ishing true threats generally. 
II 
Lest there be any doubt, the First Amendment stakes 
around the defnition 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.” 
2 For these reasons, stalking prosecutions that do not rely on the content 
of communications would raise even fewer First Amendment concerns. 
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Mahanoy Area School Dist. v. B. L., 594 U. S. –––, ––– (2021). 
Yet “[m]ost of what we say to one another lacks `religious, 
political, scientifc, educational, journalistic, historical, or ar-
tistic value' (let alone serious value), but it is still sheltered 
from Government regulation.” Stevens, 559 U. S., at 479 
(emphasis deleted). First Amendment vigilance is espe -
cially important when speech is disturbing, frightening, or 
painful, because the undesirability of such speech will place 
a heavy thumb in favor of silencing it. In response, the 
Court has upheld First Amendment rights in the context of 
gruesome animal cruelty videos, id., at 472; cross burning, 
Virginia v. Black, 538 U. S. 343, 347–348 (2003); hateful rhet-
oric in protests of the funerals of fallen soldiers, Snyder v. 
Phelps, 562 U. S. 443, 448–449, 458 (2011); and computer-
generated images of child pornography, Ashcroft v. Free 
Speech Coalition, 535 U. S. 234, 239–240, 258 (2002). 
The risk of overcriminalizing upsetting or frightening 
speech has only been increased by the internet. Our 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, 
104 (2017) (citation omitted). “Rapid changes in the dynam-
ics 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 con-
siderably different norms around appropriate speech. On-
line 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 inad-
vertently reach a larger audience. 
Without suffcient protection for unintentionally threaten-
ing 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 unre-
fectingly using language he read in an online forum. “[A]

88 COUNTERMAN v. COLORADO 
Opinion of Sotomayor, J. 
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 mo-
ment, someone may post an enraged comment under a news 
story about a controversial topic. Another person might 
reply equally heatedly. In a Nation that has never been 
timid about its opinions, political or otherwise, this is 
commonplace. 
Many of this Court's true-threats cases involve such 
charged political speech. See Black, 538 U. S., at 348–349 
(Ku Klux Klan rally); Watts, 394 U. S., at 707 (antiwar pro-
test); Rogers v. United States, 422 U. S. 35, 41–42, 47–48 
(1975) (Marshall, J., concurring) (opposition to Nixon's poli-
cies 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 fnd it threatening. And the ubiquity of such speech 
raises the possibility of highly discretionary enforcement. 
The burdens of overcriminalization will fall hardest on cer-
tain groups. A jury's determination of when angry hyper-
bole crosses the line will depend on amorphous norms around 
language, which will vary greatly from one discursive com-
munity to another. Juries' decisions will refect their “back-
ground knowledge and media consumption.” Minnesota 
Voters Alliance v. Mansky, 585 U. S. –––, ––– (2018). 
“[S]peakers whose ideas or views occupy the fringes of our 
society have more to fear, for their violent and extreme rhet-
oric, even if intended simply to convey an idea or express 
displeasure, is more likely to strike a reasonable person as 
threatening.” United States v. White, 670 F. 3d 498, 525 
(CA4 2012) (Floyd, J., concurring in part and dissenting in 
part). Members of certain groups, including religious and 
cultural minorities, can also use language that is more sus-
ceptible to being misinterpreted by outsiders. And unfortu-
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nately yet predictably, racial and cultural stereotypes can 
also infuence whether speech is perceived as dangerous. 
See, e. g., A. Dunbar, C. Kubrin, & N. Scurich, The Threaten-
ing 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 85–86. 
Even isolated threatening speech can do real harm. Such 
speech not only disrupts lives, it can silence the speech of 
others who become afraid to speak out. A mens rea re-
quirement would not, however, present an uncommon or in-
surmountable barrier to true-threats prosecutions.
3 None-
theless, under such a standard, there will be some speech 
that some fnd 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-
3 Intent requirements are common, including for incitement that results 
in actual violence, not just the threat of it. See infra, at 97–99. 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.

90 COUNTERMAN v. COLORADO 
Opinion of Sotomayor, J. 
gins by defning true threats as all objectively threatening 
speech, entirely independent of whether the speaker in-
tended to be threatening, ante, at 74, and the lead dissent 
agrees, post, at 107–108 (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 74 (citing 
Elonis v. United States, 575 U. S. 723, 733 (2015)). The 
Court declares all such speech categorically unprotected, and 
then asks what “buffer zone” is needed in order to protect 
other, unthreatening speech. See ante, at 72–75. 
Respectfully, I see the analysis differently. The frst step 
in the analysis should instead be to ask about the scope of 
the well-defned 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 redefne what counts as a “threat” 
or “defamation” at will, this would achieve the same results 
as creating new categories of unprotected speech. 
Thus, the Court must frst ask whether there is a long-
standing tradition of punishing inadvertent threats as “true 
threats.” This Court's prior defnition of the word “threat” 
in a federal statute, looking primarily to dictionaries, Elonis, 
575 U. S., at 733, does not tell us the scope of “true threats” 
for First Amendment purposes. Elonis itself made clear 
that it did “not . . . consider any First Amendment issues.” 
Id., at 740. Instead, a careful examination of this Court's 
true-threats precedent and the history of threat crimes does 
not support a long-settled tradition of punishing inadvert-
ently threatening speech. 
A 
A natural place to begin, one might think, would be with 
this Court's most recent decision involving the First Amend-
ment, mens rea, and true threats. Yet to read the Court's 
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decision, one would have little idea that in a seminal 2003 
decision, this Court held that a threat conviction could not 
stand because of an insuffcient mens rea requirement. See 
Black, 538 U. S. 343. Black plainly sets out a conception of 
true threats as including a mens rea requirement. 
In Black, the Court confronted the constitutionality of a 
Virginia statute that prohibited burning a cross with intent 
to intimidate. Only part of the decision in Black is con-
tained in a fve-Justice majority opinion. The other relevant 
parts of the decision were written by the Members of that 
majority, who split into a four-Justice plurality and Justice 
Scalia's partial concurrence in judgment. 
The majority explained why a prohibition on cross burning 
with intent to threaten was constitutional, beginning by de-
fning the category of true threats. “ `True threats,' ” the 
majority explained “encompass those statements where the 
speaker means to communicate a serious expression of an 
intent to commit an act of unlawful violence.” Id., at 359 
(emphasis added). However, “[t]he speaker need not 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 evi-
dence of an intent to intimidate.' ” Id., at 348. In other 
words, the all-important intent requirement could be satis-
fed by the mere conduct itself. 
Consistent with the majority's defnition of true threats, 
both the plurality and Justice Scalia agreed that the lack of 
a suffcient intent requirement meant that a conviction under 
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92 COUNTERMAN v. COLORADO 
Opinion of Sotomayor, J. 
the statute could not stand. Id., at 367, 379. For the plu-
rality, the intent requirement was “the very reason why a 
State may ban cross burning” because it “distinguish[ed]” 
between the constitutionally unprotected true threat of 
burning a cross with intent to intimidate and “cross burning 
[as] a statement of ideology.” Id., at 365–366.
4 For Justice 
Scalia, the “plurality [was] correct in all of this.” Id., at 372 
(opinion concurring in part, concurring in judgment in part, 
and dissenting in part). There was a constitutional need for 
a distinction between cross burning “ `intended to 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 instructions 
made it unclear “whether the jury has rendered its verdict 
(as it must)” with suffcient consideration of “intent to intim-
idate,” 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 insuffciently considered “intent to intimidate,” 
id., at 380 (opinion of Scalia, J.). 
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 neces-
sary to decide whether a particular cross burning' was covered by the 
statute.” Post, at 114–115 (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 con-
text to the extent it was relevant to the mens rea requirement needed to 
render the statute constitutional. Id., at 365–366. 
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Opinion of Sotomayor, J. 
In sum, all fve Justices in the Black majority agreed 
that a true-threats prosecution could not stand under the 
First Amendment without a suffcient subjective mens rea 
requirement.5 
B 
In defning 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. His-
torically, 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 
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 insuffcient 
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 74, n. 3; post, at 115, 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 Amend-
ment problems if the Amendment did not impose a mens rea requirement 
of this kind. After all, “[w]hy would the First Amendment care how a 
jury goes about fnding an [intent] element that is a matter of indifference 
to the Amendment?” United States v. Heineman, 767 F. 3d 970, 980 
(CA10 2014). The obvious answer, from Black's reasoning to its holding, 
is that such a mens rea requirement was necessary for the statute to 
target true threats. 
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94 COUNTERMAN v. COLORADO 
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when one considers that the sample size consists of decisions 
from both sides of the Atlantic across centuries. 
There was a long tradition of crimes for threatening 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 
[the victim's] mind.” 2 W. Russell & D. Davis, Crimes & 
Misdemeanors *1845 (emphasis added). 
Consistent with this, defendants were convicted of “know-
ingly, 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) (indict-
ment for “knowingly, unlawfully, wickedly, and feloniously” 
sending a threatening letter); see also King v. Girdwood, 
1 Leach 142, 168 Eng. Rep. 173 (1776) (indictment for “felo-
niously” sending a threatening letter). “ `[K]nowingly and 
wilfully' effecting any result applies to those who know that 
the acts performed will have that effect, and perform 
them with the intention that such shall be their operation.” 
12 American and English Encyclopaedia of Law 522–524 
(J. Merrill ed. 1890); see also J. Boag, Imperial Lexicon of the 
English Language 530 (1850) (defning “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 evi-
dence. 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

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Opinion of Sotomayor, J. 
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 offense 
of sending a threatening letter “to the party whose fears the 
threat it contains was calculated to alarm”). 
Threat laws in the United States were of a piece. Some 
state laws about threats expressly required maliciousness. 
See Me. Rev. Stat., Tit. 12, ch. 154, § 26 (1840); 1884 La. Acts 
No. 64, § 1, p. 86. Courts more generally emphasized the 
importance of a mens rea requirement. See, e. g., State v. 
Benedict, 11 Vt. 236, 239 (1839). The North Carolina Su-
preme Court, for example, singled out threats as quintessen-
tial 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 require-
ments in. See Commonwealth v. Morton, 140 Ky. 628, 631, 
131 S. W. 506, 507–508 (1910) (letter must be “calculated to 
alarm, disturb, intimidate, or injure”); see also State v. Stew-
art, 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. 
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There is no line of cases or pattern of statutes affrmatively 
stating that an objective standard is suffcient. 
C 
Put together, Black and the history point to an intent re-
quirement. When Black defned 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 defnition of 
purpose or knowledge. See, e. g., Tison, 481 U. S., at 150. 
Nor would a recklessness standard play the necessary role 
of distinguishing between cross burning that is “ `intended 
to intimidate' . . . and nonintimidating cross burning [that] 
cannot be prohibited.” 538 U. S., at 372 (opinion of Sca-
lia, 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 aware-
ness of some risk a reasonable spectator would feel threat-
ened. See id., at 388–391 (Thomas, J., dissenting). Reck-
lessness, which turns so heavily on an objective person 
standard, would not have been enough. 
As to the history, it is true that over time courts have 
often used a wide variety of terms to describe mental states. 
See, e. g., Morissette v. United States, 342 U. S. 246, 252 
(1952). Yet “[t]he element of intent in the criminal law has 
traditionally been viewed as a bifurcated concept embracing 
either the specifc requirement of purpose or the more gen-
eral 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 “ `in-
tent' ”). And at the very least, there is no well-settled his-
tory showing that it is enough for a defendant to be merely 
aware of some risk that their statements could be threaten-
ing. See, e. g., Borden v. United States, 593 U. S. –––, ––– 
(2021) (plurality opinion) (recklessness requires awareness of 
a level of risk that “need not come anywhere close to a likeli-
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Opinion of Sotomayor, J. 
hood”). The history is, instead, replete with the enduring 
and commonsense pairing of threats and intent. 
D 
The Court, eschewing Black and history, instead reaches 
its result based on the need for a “buffer zone” drawn by 
analogy to other categories of unprotected speech. Ante, at 
72–73. For the reasons above, I do not think we can leap 
ahead to this question. With that caveat, I agree with the 
Court that precedent in other areas of unprotected speech 
and concerns about chilling support a subjective mens rea 
requirement for true threats. Yet these same chilling 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 78, he advocated “requir[ing] proof that the 
speaker intended his statement to be taken as a threat,” 
based on concerns about punishing “pure speech.” Rogers, 
422 U. S., at 47–48. In determining the appropriate mens 
rea, the Court analogizes to three categories of traditionally 
unprotected speech: incitement, obscenity, and defamation. 
None of these warrants expanding the narrow boundaries of 
true threats. 
1 
Speech inciting harm is the closest cousin to speech threat-
ening 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 defned in terms of both inten-
tion and effect, covering speech “[1] intended to produce, and 
[2] likely to produce, imminent disorder.” Hess v. Indiana, 
414 U. S. 105, 109 (1973) (per curiam ). 
Despite their similar nature and source, the Court today 
draws a hard line between the two. Incitement requires 
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98 COUNTERMAN v. COLORADO 
Opinion of Sotomayor, J. 
“ `inten[t].' ” Ante, at 76. 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 79 (internal quotation marks omitted). The Court justi-
fes this asymmetry by the idea “that incitement to disorder 
is commonly a hair's-breadth away from political `advocacy,' ” 
ante, at 81, and the lead dissent says much the same, 
post, at 112–113 (opinion of Barrett, J.). These opinions 
offer little basis for distinguishing threats on this ground, as 
this Court's own cases show time and again how true-threats 
prosecutions sweep in political speech. See Black, 538 U. S., 
at 348–349; Watts, 394 U. S., at 707 (antiwar protest); Rogers, 
422 U. S., at 41–42 (Marshall, J., concurring) (opposition 
to Nixon's policies toward China).
6 Not only that, but in-
citement 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 “boycott vi-
olators would be `disciplined' ” and that “ `[i]f we catch any of 
you going in any of them racist stores, we're gonna break 
your damn neck.' ” Id., at 902. The Court acknowledged 
that in this charged context, these speeches “might have 
been understood as inviting an unlawful form of discipline 
or, at least, as intending to create a fear of violence.” Id., 
at 927. Yet infammatory and threatening as these speeches 
were, they did not constitute incitement. That was because 
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). 
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“there [was] no evidence—apart from the speeches them-
selves—that Evers authorized, ratifed, or directly threat-
ened acts of violence.” Id., at 929. His speeches were thus 
not “ `directed to inciting or producing imminent lawless ac-
tion' ” and he had not “specifcally intended to further an 
unlawful goal.” Id., at 925, n. 68, 928. 
Under a recklessness rule, Claiborne would have come out 
the other way. So long as Evers had some subjective aware-
ness of some risk that a reasonable person could regard his 
statements as threatening, that would be suffcient. It 
would be quite troubling indeed to adopt a rule rendering 
this Court's admirable defense of the First Amendment 
wrongly decided. Nor is Claiborne the only example. The 
foundational incitement case, Brandenburg v. Ohio, 395 U. S. 
444 (1969) (per curiam ), extended First Amendment protec-
tions to armed Klan members uttering racial slurs, a warning 
that “there might have to be some revengeance taken,” and 
plans for a “ `four hundred thousand strong' ” march in two 
cities. Id., at 446. Then, as now, there would be at least 
some risk that a reasonable resident of those cities could 
feel threatened. 
These concrete examples illustrate a more general princi-
ple. Speech inciting imminent and dangerous unlawful ac-
tivity will reasonably be threatening to those who would be 
harmed by that illegality. In all such cases, whether semi-
nal decisions by this Court or guilty pleas that barely see 
the inside of a courtroom, the Court's decision effectively 
downgrades to recklessness the mens rea required for incite-
ment of unlawful force; prosecutors could now simply charge 
such offenses as true threats. This is particularly worri-
some because the standard for recklessness decreases the 
lower the “social utility” of the conduct. 1 W. LaFave, Sub-
stantive Criminal Law § 5.4(f) (3d ed. 2018). That is a trou-
bling standard for juries in a polarized nation to apply in 
cases involving heated political speech. This collateral dam-
age can be avoided, however, if intent to threaten is under-
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100 COUNTERMAN v. COLORADO 
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stood as part of a true threat, just like intent to incite is part 
of incitement. 
2 
While obscenity is a step further afeld of true threats and 
incitement, examination of this Court's obscenity case law 
further supports an intent requirement for prosecutions of 
true threats. 
The Constitution “ `requires proof of scienter' ” in part “ `to 
compensate for the ambiguities inherent in the defnition of 
obscenity.' ” Hamling v. United States, 418 U. S. 87, 123 
(1974). This is in line with this Court's more general ob-
servation 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 
Specifcally, the Court has held that a “knowledge” mens 
rea is suffcient for obscenity: “It is constitutionally suffcient 
that the prosecution show that a defendant had knowledge 
of the contents of the materials he distributed, and that he 
knew the character and nature of the materials.” Hamling, 
418 U. S., at 123. This ensures that “not innocent but calcu-
lated purveyance of flth . . . is exorcised.” Id., at 122 (inter-
nal quotation marks omitted). While the Court today as-
serts that this Court has “never determined the precise 
mens rea” for obscenity, ante, at 82, n. 6, the Court has cited 
a knowledge standard approvingly for half a century, see 
Hamling, 418 U. S., at 123; Elonis, 575 U. S., at 739.
8 
7 Analogously, the Court's civil defamation case law recognizes that 
heightened liability can require a heightened mens rea; even as to nonpub-
lic fgures, 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 suffcient 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 
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Opinion of Sotomayor, J. 
Applying that standard to threats, the “ `calculated purvey-
ance' 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 defne what is ob-
scene. Hamling, 418 U. S., at 129. Such a standard is noto-
riously amorphous, and will change a great deal between 
communities and over time. The same chilling concerns 
apply to true threats. A recklessness standard based on 
what a reasonable person could fnd threatening will depend 
on ever-shifting community norms around language and 
when heated speech crosses the line from overly aggressive 
to criminal. See supra, at 86–89.
9 
3 
Finally, the Court relies heavily upon this Court's frame-
work for defamation. Specifcally, the Court analogizes to 
the “reckless disregard” standard for defamation of public 
fgures or punitive damages for certain claims involving pri-
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 por-
nography, with its integral ties to separate criminal conduct, is not a 
strong analogue for threats, which can be feeting statements in total isola-
tion from any other criminality (though it is a stronger analogy to threats 
as part of an unlawful course of stalking). Yet the Court's decision today 
puts child pornography on a First Amendment par with overheated politi-
cal 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 scientifc 
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 in-
tended 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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102 COUNTERMAN v. COLORADO 
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vate fgures. 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 76, 
the same does not go for criminal prosecution of defamation. 
It is true that this Court in 1964 invalidated a prosecution 
for criminal libel for failing to apply the Sullivan standard, 
which covers “only those false statements made with a high 
degree of awareness of their probable falsity.” Garrison v. 
Louisiana, 379 U. S. 64, 75 (1964). Yet the Court expressed 
strong skepticism of the very concept of criminal 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 promis-
ing 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 prosecu-
tions. The generic formulation of recklessness requires that 
an individual disregard a relatively unspecifed level of risk 
that the harm in question will occur. See Borden, 593 U. S., 
at ––– (plurality opinion). Within that potentially broad 
range, Sullivan provides a more defnite and demanding 
level of risk, refecting the First Amendment concerns at 
stake. The Court has “made clear that the defendant must 
have made the false publication with a high degree of aware-
ness 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 quo-
tation marks and ellipsis omitted). This makes sense. 
Allowing liability for awareness of a small chance that a 
story may be false would undermine the very shield Sulli-
van erects. 
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Opinion of Sotomayor, J. 
For similar reasons, after today's ruling, future courts 
grappling with how to articulate the appropriate level of 
recklessness in true-threats cases would be well served to 
consult the Sullivan standard. The equivalent to Sullivan 
for true threats would require a high degree of awareness 
that a statement was probably threatening or serious doubts 
as to the threatening nature of the statement. This could 
avoid the chilling that would arise from a more amorphous 
and easily satisfed standard. 
4 
This Court's various frameworks for unprotected speech 
do not speak with one voice, as perhaps befts the First 
Amendment. The above survey does not, however, give 
reason to depart from the traditional understanding of true 
threats. To the contrary, this case law supports keeping 
true threats within their traditional bounds. Incitement 
similarly requires intent. The same chilling concerns that 
have led this Court to approve a knowledge requirement for 
obscenity are present with true threats. And to the extent 
the civil defamation context is relevant, at the very least, it 
points to a precise and demanding form of recklessness.
10 
10 The lead dissent headlines its analysis by pointing to this Court's case 
law on “fghting words.” Post, at 109 (opinion of Barrett, J.). This is 
an unlikely candidate for a broader theory of the First Amendment. For 
“nearly three-quarters of a century . . . the Court has never . . . upheld a 
fghting words conviction” and “[t]he cumulative impact of [the Court's] 
decisions is to make it unlikely that a fghting words law could survive.” 
E. Chemerinsky, The First Amendment 1094 (6th ed. 2019). It is not hard 
to see why such convictions would be unlikely to pass First Amendment 
muster; the leading case involved a Jehovah's Witness distributing litera-
ture who was arrested for breach of the peace for calling a public offcial 
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, 
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104 COUNTERMAN v. COLORADO 
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IV 
Maintaining true threats doctrine within its traditional 
boundaries will guard against the overcriminalization of a 
wide range of political, artistic, and everyday speech based 
on its content alone. This does not mean that 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 suffcient. 
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 ordi-
nary human experience, mental condition can be inferred.” 
American Communications Assn. v. Douds, 339 U. S. 382, 
411 (1950). 
* * * 
I agree with the Court's conclusion that the First Amend-
ment requires a subjective mens rea in true-threats cases, 
and I also agree that recklessness is amply suffcient for this 
case. Yet I would stop there, leaving for another day the 
question of the specifc 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 in-
tentional threats. Especially in a climate of intense polar-
ization, 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 
intent to threaten was required. See 2 R. Anderson, Wharton's Criminal 
Law and Procedure § 803, pp. 659–660 (1957). 
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Thomas, J., dissenting 
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. 
Justice Thomas, dissenting. 
I join Justice Barrett's dissent in full. I write sepa-
rately to address the majority's surprising and misplaced re-
liance 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 fgures 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 constitu-
tional law.” McKee v. Cosby, 586 U. S. –––, ––– (2019) 
(Thomas, J., concurring in denial of certiorari). Instead of 
simply applying the First Amendment as it was understood 
at the time of the Founding, “the Court fashioned its own 
` “federal rule[s]” ' by balancing the `competing values at 
stake in defamation suits.' ” Ibid. (quoting Gertz v. Robert 
Welch, Inc., 418 U. S. 323, 334, 348 (1974)); see also Bose 
Corp. v. Consumers Union of United States, Inc., 466 U. S. 
485, 501–502 (1984) (acknowledging that “the rule enunciated 
in the New York Times case” is “largely a judge-made rule 
of law,” the “content” of which is “given meaning through 
the evolutionary process of common-law adjudication”). 
“The constitutional libel rules adopted by this Court in New 
York Times and its progeny broke sharply from the common 
law of libel, and there are sound reasons to question whether 
the First and Fourteenth Amendments displaced this body 
of common law.” McKee, 586 U. S., at ––– (opinion of 
Thomas, J.). Thus, as I have previously noted, “[w]e should 
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106 COUNTERMAN v. COLORADO 
Barrett, J., dissenting 
reconsider our jurisprudence in this area.” Id., at –––; 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 numer-
ous extensions. See, e. g., Berisha, 594 U. S., at ––– – ––– 
(Gorsuch, J., dissenting from denial of certiorari); Coughlin 
v. Westinghouse Broadcasting & Cable, Inc., 476 U. S. 1187 
(1986) (Burger, C. J., joined by Rehnquist, J., dissenting from 
denial of certiorari); Gertz, 418 U. S., at 370 (White, J., dis-
senting); Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 62 
(1971) (Harlan, J., dissenting); id., at 78 (Marshall, J., dissent-
ing); Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., 
concurring); see also E. Kagan, A Libel Story: Sullivan Then 
and Now, 18 L. & Soc. Inquiry 197, 207 (1993); J. Lewis & 
B. Ottley, New York Times v. Sullivan at 50, 64 DePaul L. 
Rev. 1, 35–36 (2014) (collecting statements from Justice 
Scalia); cf. Tah v. Global Witness Publishing, Inc., 991 F. 3d 
231, 251–256 (CADC 2021) (Silberman, J., dissenting in part) 
(questioning the doctrine). It is thus unfortunate that the 
majority chooses not only to prominently and uncritically in-
voke New York Times, but also to extend its fawed, policy-
driven First Amendment analysis to true threats, a separate 
area of this Court's jurisprudence. 
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 re-
quires that the speaker understand the meaning of his 
words. Ante, at 72, n. 1. The question is what more the 
First Amendment requires. Colorado maintains that an ob-
jective 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 
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Barrett, J., dissenting 
speaker himself must intend or know the threatening nature 
of the statement. 
It should be easy to choose between these positions. True 
threats do not enjoy First Amendment protection, and 
nearly every other category of unprotected speech may be 
restricted using an objective standard. Nonetheless, the 
Court adopts a subjective standard, though not quite the one 
advanced by Counterman. The Court holds that speakers 
must recklessly disregard the threatening nature of their 
speech to lose constitutional protection. Because this un-
justifably grants true threats preferential treatment, I re-
spectfully dissent. 
I 
Since the founding, the First Amendment has allowed the 
government to regulate certain “areas of speech” “because 
of their constitutionally proscribable content.” R. A. V. v. 
St. Paul, 505 U. S. 377, 382–383 (1992) (emphasis deleted). 
This includes true threats, which are “serious expression[s] 
of an intent to commit an act of unlawful violence to a partic-
ular individual or group of individuals.” Virginia v. Black, 
538 U. S. 343, 359 (2003); see also R. A. V., 505 U. S., at 388 
(“[T]hreats of violence are outside the First Amendment”). 
True threats carry little value and impose great cost. See 
Chaplinsky v. New Hampshire , 315 U. S. 568, 572 (1942) 
(“[A]ny beneft that may be derived from [true threats] is 
clearly outweighed by the social interest in order and moral-
ity”). “[B]y their very utterance,” true threats “infict in-
jury.” Ibid. They provoke “the fear of violence,” create 
“disruption,” give rise to “the possibility that the threatened 
violence will occur”—and the list goes on. Black, 538 U. S., 
at 360 (internal quotation marks omitted).
1 
1 Indeed, the Colorado Legislature considered these very harms when it 
enacted the statute at issue here. The statutory fndings explain that 
stalking, harassment, and threats have “an immediate and long-lasting im-
pact 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– 
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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 
subjective ones. So an objective test “complements the 
explanation for excluding threats of violence from First 
Amendment protection in the frst place.” United States v. 
Jeffries, 692 F. 3d 473, 480 (CA6 2012). 
II 
The Court agrees that “[t]he existence of a threat depends 
not on `the mental state of the author,' but on `what the 
statement conveys' to the person on the other end.” Ante, 
at 74. And it acknowledges that “[w]hen the statement is 
understood as a true threat, all the harms that have long 
made threats unprotected naturally follow.” Ibid. None-
theless, the Court holds Colorado's statute unconstitutional. 
Why? Because the Court installs a prophylactic buffer zone 
to avoid chilling protected speech—a buffer zone that pro-
tects true threats unless the speaker “consciously disre-
garded a substantial risk that his communications would be 
viewed as threatening violence.” Ante, at 69, 72–73. That 
reasoning is fawed. 
A 
The Court's frst 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 
3–602(1) (2022). So the legislature passed the statute to “encourag[e] and 
authoriz[e] effective intervention” before the covered conduct could “esca-
late into behavior that has even more serious consequences.” § 18–3– 
601(2). 
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Barrett, J., dissenting 
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 fghting 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 
fghting 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 “fght-
ing words” according to a reasonable-person standard); Cant-
well 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-
fce of Disciplinary Counsel of Supreme Court of Ohio , 471 
U. S. 626, 638 (1985); In re R. M. J., 455 U. S. 191, 203 (1982) 
(“Truthful advertising . . . is entitled to the protections of 
the First Amendment,” but “[m]isleading advertising may be 
prohibited entirely”); Ibanez v. Florida Dept. of Business 
and Professional Regulation, Bd. of Accountancy , 512 U. S. 
136, 142 (1994) (“[F]alse, deceptive, or misleading commercial 
speech may be banned”). Here, too, our cases suggest that 
First Amendment protection depends on objective falsity 
rather than the speaker's intention. See In re R. M. J., 455 
U. S., at 202 (“[R]egulation—and imposition of discipline— 
are permissible where the particular advertising is inher-
ently likely to deceive or where the record indicates that a 
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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 dis-
semination of commercial speech that is false, deceptive, or 
misleading,” without regard to whether the speaker knew 
that the recipient would be deceived or misled. Zauderer, 
471 U. S., at 638. 
Or take obscenity, which we have long held is “not pro-
tected by the freedoms of speech and press.” Roth v. 
United States, 354 U. S. 476, 481 (1957). Speech qualifes 
as obscene if the “ `average person, applying contemporary 
community standards,' ” would conclude that “the work, 
taken as a whole, appeals to the prurient interest.” Miller 
v. California, 413 U. S. 15, 24 (1973). The jury must also 
make an objective judgment about whether the speech “de-
picts or describes” sexual conduct “in a patently offensive 
way,” and whether it “lacks serious literary, artistic, political, 
or scientifc value.” Ibid. The speaker's “ `belief as to the 
obscenity or non-obscenity of the material is irrelevant.' ” 
Hamling v. United States, 418 U. S. 87, 120–121 (1974). So 
long as the defendant has “knowledge of the contents of the 
materials,” her speech may be constitutionally regulated. 
Id. , at 123. An objective, reasonable-person standard 
applies. 
In an effort to bolster its position, the Court foats a differ-
ent standard for obscenity laws, asserting that “the First 
Amendment demands proof of a defendant's mindset to make 
out an obscenity case.” Ante, at 76. By “mindset,” the 
Court apparently means that the defendant must have some 
awareness that an average person would consider the mate-
rials obscene. But the Court draws this conclusion from 
cases rejecting a strict liability standard—for example, we 
have held that the proprietor of a bookstore cannot be liable 
for possessing an obscene book unless he knew what was in 
it. Smith v. California, 361 U. S. 147, 149, 155 (1959); Mish-
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Barrett, J., dissenting 
kin v. New York, 383 U. S. 502, 510–512 (1966); see also Gins-
berg v. New York, 390 U. S. 629, 643–644 (1968). 2 Knowing 
what the material depicts is not the same as knowing how 
the average person would react to it—just as there is an 
important difference between Counterman's knowledge of 
what his words meant and his knowledge of how they would 
be perceived. Though the Court confates the two, our ob-
scenity cases have repeatedly refused to require the latter 
as a matter of constitutional law. Hamling, 418 U. S., at 
120–123; Rosen v. United States, 161 U. S. 29, 41–42 (1896). 
So obscenity doctrine does not help Counterman. 
The Court leans hardest on defamation law, but its argu-
ment depends on a single, cherry-picked strand of the doc-
trine. Yes, New York Times Co. v. Sullivan requires public 
fgures and public offcials to show “actual malice” on a defa-
mation claim, and we have defned “actual malice” as “knowl-
edge that [the statement] was false” or “reckless disregard 
of whether it was false or not.” 376 U. S. 254, 279–280 
(1964). But that is not the full story. A private person 
need only satisfy an objective standard to recover actual 
damages for defamation. Gertz v. Robert Welch, Inc., 418 
U. S. 323, 347–350 (1974). And if the defamatory speech 
does not involve a matter of public concern, she may recover 
punitive damages with the same showing. Dun & Brad-
street, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 760– 
761 (1985) (plurality opinion). We have justifed that dis-
tinction on the ground that public-fgure defamation claims 
may deter “would-be critics of offcial conduct . . . from voic-
2 The Court also cites Elonis v. United States, ante, at 76, 77, n. 4, which 
Counterman argues puts a “gloss” on obscenity doctrine, Tr. of Oral Arg. 
6–7. While Elonis briefy 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 
Constitution. 
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112 COUNTERMAN v. COLORADO 
Barrett, J., dissenting 
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 fgures is weaker, since they tend to “enjoy signif-
cantly greater access to the channels of effective communica-
tion and hence have a more realistic opportunity to counter-
act 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 subjec-
tive mental-state requirement.” Ante, at 75. Instead, it 
simply raises the bar for borderline unprotected speech with 
high social value (because of its proximity to public dis-
course) and low potential for injury (because public fgures 
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 protect-
ing heated political commentary. Nor can public fgures 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 presum-
ably value their lives more than their reputations. See 
Gertz, 418 U. S., at 347–350. The Court has therefore ex-
tended Sullivan in a way that makes no sense on Sullivan's 
own terms. 
I will give the Court this much: Speakers must specifcally 
intend to incite violence before they lose First Amendment 
protection. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) 
(per curiam ) (defning 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, how-
ever, our precedent itself explains the difference. Incite-
ment, as a form of “advocacy,” often arises in the political

Cite as: 600 U. S. 66 (2023) 113 
Barrett, J., dissenting 
arena. See Brandenburg, 395 U. S., at 447 (Ku Klux Klan 
rally held to plan a “ `marc[h] on Congress' ”); Hess, 414 U. S., 
at 106 (antiwar demonstration); Abrams v. United States, 
250 U. S. 616, 620 (1919) (pamphlets about the President's 
“ `shameful, cowardly silence about the intervention in Rus-
sia' ”). A specifc intent requirement helps draw the line be-
tween incitement and “political rhetoric lying at the core of 
the First Amendment.” NAACP v. Claiborne Hardware 
Co., 458 U. S. 886, 926–927 (1982). The Court does not con-
tend that targeted threats and political commentary share a 
similarly close relationship. 
In sum, our First Amendment precedent does not set a 
“ban on an objective standard.” Ante, at 78. Precedent 
does more than allow an objective test for true threats; on 
balance, it affrmatively 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 satisfes the 
defnition of a true threat. To make a true threat, the speaker 
must express “an intent to commit an act of unlawful vio-
lence.” Black, 538 U. S., at 359 (emphasis added). Speech 
that is merely “offensive,” “ `poorly chosen,' ” or “unpopular” 
does not qualify. Brief for Petitioner 31, 36, 42. The state-
ment 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-fgure defamation, the model for the Court's rule. 
While defamatory statements can cover an infnite number 
of topics, true threats target one: unlawful violence. 
Second, the statement must be deemed threatening by a 
reasonable listener who is familiar with the “entire factual 
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114 COUNTERMAN v. COLORADO 
Barrett, J., dissenting 
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 consider-
ation helps weed out protected speech from true threats. 
Our decision in Black illustrates the point. There, the 
Court considered a Virginia law that prohibited cross 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 prohi-
bition 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 mo-
nolithic. 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 
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 
surrounding events; (2) the medium or platform through which the state-
ment was communicated, including any distinctive conventions or architec-
tural features; (3) the manner in which the statement was conveyed (e. g., 
anonymously or not, privately or publicly); (4) the relationship between the 
speaker and recipient(s); and (5) the subjective reaction of the statement's 
intended or foreseeable recipient(s).” People in the Interest of R. D., 464 
P. 3d 717, 721–722 (Colo. 2020). 
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Barrett, J., dissenting 
a particular cross burning” was covered by the statute or 
not.4 Id., at 365, 367. Thus, the presumption was unconsti-
tutionally overbroad. 
The Black plurality's reasoning can be boiled down to the 
following insight: When context is ignored, true threats can-
not be reliably distinguished from protected speech. The 
reverse also holds: When context is properly considered, con-
stitutional concerns abate. See, e. g., Watts v. United States, 
394 U. S. 705, 708 (1969) (per curiam ) (concluding that a 
statement was “political hyperbole” instead of a true threat 
based on “context,” “the expressly conditional nature of the 
statement,” and the “reaction of the listeners”). 
One more point: Many States have long had statutes like 
Colorado's on the books. See Brief for Illinois et al. as 
Amici Curiae 16–17. Before we took this case, the vast ma-
jority of Courts of Appeals and state high courts had upheld 
these statutes as constitutional. So objective tests are ef-
fectively the status quo today, yet Counterman still strug-
gles to identify past prosecutions that came close to infring-
ing 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 
4 As Justice Sotomayor emphasizes, ante, at 92, n. 4, the plurality said 
that context informs “whether a particular cross burning is intended to 
intimidate,” 538 U. S., at 367 (emphasis added). But this was a reference 
to the statutory requirements for a conviction, not the constitutional re-
quirements—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 specifc 
intent; on the contrary, it recognized that a statement made “with the 
intent of placing the victim in fear of bodily harm or death” is “ a type of 
true threat.” Id., at 360 (emphasis added).

116 COUNTERMAN v. COLORADO 
Barrett, J., dissenting 
been inherent in the defnition 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 de-
bates about efforts to regulate threats in ways that might 
threaten speech. That is not surprising at the federal level, 
because the Federal Government did not prohibit threats 
until the early 20th century. Elonis, 575 U. S., at 760 
(Thomas, J., dissenting). Some States, however, both regu-
lated 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 implica-
tions 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 con-
trary. But the question here is whether a subjective intent 
requirement is the constitutional foor. And because the 
legislature is always free to exceed the foor, the enactment 
of legislation does not necessarily refect the legislature's 
view of the constitutional minimum. 
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Barrett, J., dissenting 
At the end of the day, then, the best historical case for 
Counterman does not add up to much. He is plainly not ask-
ing the Court to enforce a historically sanctioned rule, but 
rather to fashion a new one. 
D 
Even if a subjective test had a historical pedigree, the 
Court's chosen standard of recklessness certainly does not. 
Where does recklessness come from? It was not raised by 
the parties. Only the Solicitor General noted this possibil-
ity—and briefy 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 constitu-
tional foor 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 reckless-
ness as “the right path forward.” Ante, at 79. Its ration-
ale is, at best, unclear. 
The Court begins by acknowledging the “ `competing val-
ue[s]' ” of “free expression” on one hand, and “profound 
harms . . . to both individuals and society” on the other. 
Ante, at 79–80. But why do these considerations point to 
recklessness? A knowledge or purpose standard would 
allow more free expression, so maybe we should go higher. 
See ante, at 97 (Sotomayor , J., concurring in part and con-
curring in judgment) (“chilling concerns only further but-
tress the conclusion that true threats should be limited 
to intentionally threatening speech”). An objective stand-
ard would cause less harm to victims, so perhaps lower is 
better. The optimal balance strikes me as a question best 
left to the legislature, which could calibrate the mens rea 
to the circumstance—for example, higher for the criminal 
context and lower for the civil. See Brief for Illinois 
et al. as Amici Curiae 28–30 (States “have a range of pol-
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118 COUNTERMAN v. COLORADO 
Barrett, J., dissenting 
icy reasons for using subjective standards for penalizing 
threats of violence” and many “choose to require proof of 
a speaker's subjective mental state” in some situations but 
not others). 
Nor does our First Amendment precedent buttress the 
Court's preferred standard. A recklessness requirement 
currently applies only to public-fgure defamation claims. 
Incitement to violence calls for more. Fighting words, 
private-fgure defamation, false commercial speech, and ob-
scenity require less. I fail to see why, of all these categories 
of unprotected speech, public-fgure defamation is the best 
analog for true threats. The reality is that recklessness is 
not grounded in law, but in a Goldilocks judgment: Reckless-
ness is not too much, not too little, but instead “just right.” 
III 
Some may fnd Colorado's statute harsh, and the Court's 
decision seems driven in no small part by the heavy hammer 
of criminal punishment. See ante, at 80; ante, at 96–97, 
101–102 (opinion of Sotomayor, J.). While an objective test 
is “a familiar feature of civil liability in tort law,” the “ `con-
ventional 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 inno-
cent conduct.” Id., at 736 (internal quotation marks omit-
ted). That is why we rejected an objective standard for the 
federal threat prohibition, 18 U. S. C. § 875(c). 575 U. S., at 
737–739. It is “the threatening nature of the communica-
tion” 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, 
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Barrett, J., dissenting 
the Court's holding affects the civil consequences for true 
threats just as much as it restricts criminal liability. And 
the civil context underscores the danger of adopting a 
Sullivan-style buffer zone for true threats. 
Consider, for example, threat victims who seek restraining 
orders to protect themselves from their harassers. See, 
e. g., United States v. Elonis, 841 F. 3d 589, 593 (CA3 2016) 
(defendant's wife sought a restraining order after he wrote 
on Facebook, “I'm not going to rest until your body is a mess, 
soaked in blood and dying from all the little cuts”). Civil 
orders can also keep individuals away from particular 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 location in ques-
tion—for good reason. Yet after today, such orders cannot 
be obtained without proof—not necessarily easy to secure— 
that the person who issued the threat anticipated that it 
would elicit fear. See Tr. of Oral Arg. 92–93. 
The government can also opt to counteract true threats by 
means of civil enforcement actions. For instance, 18 U. S. C. 
§ 248 prohibits “threat[s] of force” against any person “ob-
taining or providing reproductive health services” or “seek-
ing to exercise the First Amendment right of religious free-
dom at a place of religious worship.” The statute imposes 
a range of civil penalties, and it allows enforcement suits 
by both private persons and government offcials. See, e. g., 
United States v. Dillard, 795 F. 3d 1191, 1196–1197 (CA10 
2015) (Government brought § 248 action after defendant 
warned a health provider, “[y]ou will be checking under your 
car everyday—because maybe today is the day someone 
places an explosive under it”); McCullen v. Coakley, 573 U. S. 
464, 491 (2014) (noting that several States have similar laws). 
After today, these civil enforcement actions face a higher 
constitutional hurdle. 
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120 COUNTERMAN v. COLORADO 
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In addition, employers and school administrators often dis-
cipline individuals who make true threats. Consider the 
student who was expelled after “draft[ing] two violent, miso-
gynic, and obscenity-laden rants expressing a desire to mo-
lest, rape, and murder” his ex-girlfriend. Doe v. Pulaski 
Cty. Special School Dist., 306 F. 3d 616, 619 (CA8 2002) 
(en banc). Or the one who was suspended after “ `talking 
about taking a gun to school' to `shoot everyone he hates.' ” 
D. J. M. v. Hannibal Public School Dist. No. 60, 647 F. 3d 754, 
758 (CA8 2011); Lovell v. Poway Unifed School District, 90 
F. 3d 367, 369, 372–373 (CA9 1996) (similar); Haughwout v. 
Tordenti, 332 Conn. 559, 561–562, 211 A. 3d 1, 3–4 (2019) 
(similar). True threats can also be expressed by a parent, a 
teacher, or an employee in another context altogether. See, 
e. g., Taveras, 342 Conn., at 567–569, 578, 271 A. 3d, at 126– 
128, 133 (parent); Smith v. New York City Dept. of Ed., 109 
App. Div. 3d 701, 702–703, 972 N. Y . S. 2d 221, 222 (2013) 
(teacher); Diggs v. St. Louis, 613 S. W. 3d 858, 862, 864 (Mo. 
App. 2020) (correctional offcer). 
Barring some reason why the speech receives lesser con-
stitutional protection, e. g., Mahanoy Area School Dist. v. 
B. L., 594 U. S. –––, ––– – ––– (2021), the Court's new rule 
applies to all of these situations. That can make all the 
difference in some cases. A delusional speaker may lack 
awareness of the threatening nature of her speech; a devious 
speaker may strategically disclaim such awareness; and a 
lucky speaker may leave behind no evidence of mental state 
for the government to use against her. The Court's decision 
thus sweeps much further than it lets on. 
* * * 
The bottom line is this: Counterman communicated true 
threats, which, “everyone agrees, lie outside the bounds 
of the First Amendment's protection.” Ante, at 72. He 
knew what the words meant. Those threats caused the vic-
tim to fear for her life, and they “upended her daily exist-
Page Proof Pending Publication

Cite as: 600 U. S. 66 (2023) 121 
Barrett, J., dissenting 
ence.” Ante, at 70. Nonetheless, the Court concludes that 
Counterman can prevail on a First Amendment defense. 
Nothing in the Constitution compels that result. I respect-
fully dissent. 
Page Proof Pending Publication

Page Proof Pending Publication
Reporter’s Note 
The attached opinion has been revised to refect the usual publication 
and citation style of the United States Reports. The revised pagination 
makes available the offcial United States Reports citation in advance of 
publication. The syllabus has been prepared by the Reporter of Decisions 
for the convenience of the reader and constitutes no part of the opinion of 
the Court. A list of counsel who argued or fled briefs in this case, and 
who were members of the bar of this Court at the time this case was 
argued, has been inserted following the syllabus. Other revisions may 
include adjustments to formatting, captions, citation form, and any errant 
punctuation. The following additional edits were made: 
None

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 600 U. S. Part 1 Pages 66–121 OFFICIAL REPORTS OF THE SUPREME COURT June 27, 2023 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notif…

• #2

  recklessness. Pp. 72–83. (a) The First Amendment permits restrictions upon the content of speech in a few limited areas. Among these historic and traditional categories of unprotected expression is true threats. True threats are “serious expression[s]” conveying that a speaker means to “commit an act of unlawful …

• #3

  person “consciously disregard[ed] a substantial [and unjustifable] 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 prote…

• #4

  *Briefs of amici curiae urging reversal were fled for the American Civil Liberties Union et al. by Brian M. Hauss, Ben Wizner, David D. Cole, Mark Silverstein, Sara R. Neel, David A. Schulz, Barbara E. Berg- man, and Eric M. Freedman; for the Cato Institute et al. by Jay R. Schweikert and John W. Whitehead; for th…

• #5

  Virginia, and Bridget Hill of Wyoming; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Kymberlee C. Stapleton; for First Amendment Scholars by Jeffrey A. Mandell and Erin K. Deeley; for First Amendment Scholars by Charlotte H. Taylor; for the Lawyers' Committee for Civil Rights Under Law et al…

• #6

  walking alone, declined social engagements, and canceled some of her performances, though doing so caused her fnan- cial strain. See id., at 182–183, 199, 201–206, 238–239. Eventually, C. W. decided that she had to contact the authori- ties. Id., at 184. Colorado charged Counterman under a statute making it unla…

• #7

  602(1)(c). But the State had no evidence, beyond what Counterman claimed, that he actually had followed or surveilled C. W. For example, C. W. had never noticed anything of that kind. So the prosecution based its case solely on Counterman's “[r]epeated[ ] . . . communication[s]” with C. W. Ibid. Page Proof Pendin…

• #8

  others would fnd them threatening. Must he do so, under the First Amendment, for a true-threats prosecution to succeed? Page Proof Pending Publication Cite as: 600 U. S. 66 (2023) 73 Opinion of the Court protected, non-threatening speech. Counterman's view, we decide today, is the more consistent with our preced…

• #9

  U. S. 343, 359 (2003); see United States v. Alvarez, 567 U. S. 709, 717–718 (2012) (plurality opinion). The “true” in that term distinguishes what is at issue from jests, “hyperbole,” or other statements that when taken in context do not con- vey a real possibility that violence will follow (say, “I am going to k…

• #10

  speech that is permissible as instead not. See Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 777 (1986). Or he may simply be concerned about the expense of becoming en- tangled in the legal system. The result is “self-censorship” of speech that could not be proscribed—a “cautious and re- strictive exerci…

• #11

  pense of litigation will deter speakers from making even truthful statements. Sullivan, 376 U. S., at 279. The First Amendment, we have concluded, “requires that we protect some falsehood in order to protect speech that matters.” Gertz, 418 U. S., at 341. The same idea arises in the law respecting obscenity and …

• #12

  decisions as requiring merely that the defendant know “what the material depicts” (as a speaker must know a communication's contents). Post, at 110–111 (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 recen…

• #13

  give threats “a wide berth.” Id., at 47 (concurring opinion). And so use of that standard would discourage the “uninhib- ited, robust, and wide-open debate that the First Amend- ment is intended to protect.” Id., at 48 (quoting Sullivan, 376 U. S., at 270). The reasoning—and indeed some of the words—came straigh…

• #14

  aware “that others could regard his statements as” threaten- ing violence and “delivers them anyway.” Elonis, 575 U. S., at 746 (Alito, J., concurring in part and dissenting in part). 5 Among those standards, recklessness offers the right path forward. We have so far mostly focused on the constitu- tional intere…

• #15

  defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inficting seri- ous harm. Using a recklessness standard also fts with the analysis in our defamation decisions. As noted earlier, the Court there adopted a recklessness rule, applicable in both civil and crimi…

• #16

  bleed over, either directly or through a chilling effect, to dis- senting political speech at the First Amendment's core. But the potency of that protection is not needed here. For the most part, the speech on the other side of the true-threats boundary line—as compared with the advocacy addressed in our inciteme…

• #17

  recklessness standard would suffce as well. 7 The dissent accuses the Court of making a “Goldilocks judgment” in favoring a recklessness standard. Post, at 118 (opinion of Barrett, J.). But in law, as in life, there are worse things than being “just right.” Page Proof Pending Publication Cite as: 600 U. S. 66 (20…

• #18

  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 …

• #19

  tion. The briefng on recklessness consists almost entirely of a few pages of an argument in the alternative at the tail end of an amicus brief fled by the United States. Second, because petitioner was prosecuted for stalking in- volving threatening speech, this case does not require resort to the true-threats exe…

• #20

  repeated unwanted contact. Take, for example, petitioner continuously contacting C. W. despite her blocking him. Given this, prosecuting threatening statements made as part of a course of stalking does not squarely present the hardest questions about the mens rea required to prosecute isolated utterances based so…

• #21

  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, 104 (2017) (citation omi…

• #22

  bole crosses the line will depend on amorphous norms around language, which will vary greatly from one discursive com- munity to another. Juries' decisions will refect their “back- ground knowledge and media consumption.” Minnesota Voters Alliance v. Mansky, 585 U. S. –––, ––– (2018). “[S]peakers whose ideas or v…

• #23

  and I part ways on the order of operations. The Court be- 3 Intent requirements are common, including for incitement that results in actual violence, not just the threat of it. See infra, at 97–99. For that reason there are longstanding frameworks for determining when someone is not guilty by reason of insanity, a…

• #24

  this Court's most recent decision involving the First Amend- ment, mens rea, and true threats. Yet to read the Court's Page Proof Pending Publication Cite as: 600 U. S. 66 (2023) 91 Opinion of Sotomayor, J. decision, one would have little idea that in a seminal 2003 decision, this Court held that a threat convic…

• #25

  rality, 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 “plura…

• #26

  that a true-threats prosecution could not stand under the First Amendment without a suffcient subjective mens rea requirement.5 B In defning 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 Blac…

• #27

  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 offense…

• #28

  state laws about threats expressly required maliciousness. See Me. Rev. Stat., Tit. 12, ch. 154, § 26 (1840); 1884 La. Acts No. 64, § 1, p. 86. Courts more generally emphasized the importance of a mens rea requirement. See, e. g., State v. Benedict, 11 Vt. 236, 239 (1839). The North Carolina Su- preme Court, for …

• #29

  lia, 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 aware- ness of some risk a reasonable spectator would feel threat- ened. See id., at 388–391 (Thomas, J., dissenting). Reck- lessness, w…

• #30

  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 threat- ening harm. Both incitement and threats put other people…

• #31

  been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence.” Id., at 927. Yet infammatory and threatening as these speeches were, they did not constitute incitement. That was because 6 Nor is this limited to decisions by this Court. Threats cases sweep in po…

• #32

  ment of unlawful force; prosecutors could now simply charge such offenses as true threats. This is particularly worri- some because the standard for recklessness decreases the lower the “social utility” of the conduct. 1 W. LaFave, Sub- stantive Criminal Law § 5.4(f) (3d ed. 2018). That is a trou- bling standard …

• #33

  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 Page Proof Pending …

• #34

  343 (2003), explained, requiring intent distinguishes between speech in- tended to intimidate and speech intended to express a political statement. Id., at 365–366 (plurality opinion); id., at 372 (opinion of Scalia, J.). Page Proof Pending Publication 102 COUNTERMAN v. COLORADO Opinion of Sotomayor, J. vate fgu…

• #35

  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 pro…

• #36

  wide range of political, artistic, and everyday speech based 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, unw…

• #37

  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 constitu- tional law.” McKee v.…

• #38

  Scalia); cf. Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251–256 (CADC 2021) (Silberman, J., dissenting in part) (questioning the doctrine). It is thus unfortunate that the majority chooses not only to prominently and uncritically in- voke New York Times, but also to extend its fawed, policy- driven Fi…

• #39

  clearly outweighed by the social interest in order and moral- ity”). “[B]y their very utterance,” true threats “infict in- jury.” Ibid. They provoke “the fear of violence,” create “disruption,” give rise to “the possibility that the threatened violence will occur”—and the list goes on. Black, 538 U. S., at 360 (i…

• #40

  3–602(1) (2022). So the legislature passed the statute to “encourag[e] and authoriz[e] effective intervention” before the covered conduct could “esca- late into behavior that has even more serious consequences.” § 18–3– 601(2). Page Proof Pending Publication Cite as: 600 U. S. 66 (2023) 109 Barrett, J., dissenti…

• #41

  110 COUNTERMAN v. COLORADO Barrett, J., dissenting 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 dis- semination of commercial speec…

• #42

  what his words meant and his knowledge of how they would be perceived. Though the Court confates the two, our ob- scenity cases have repeatedly refused to require the latter as a matter of constitutional law. Hamling, 418 U. S., at 120–123; Rosen v. United States, 161 U. S. 29, 41–42 (1896). So obscenity doctrine…

• #43

  proposition that the First Amendment “demand[s] a subjec- tive mental-state requirement.” Ante, at 75. Instead, it simply raises the bar for borderline unprotected speech with high social value (because of its proximity to public dis- course) and low potential for injury (because public fgures can engage in count…

• #44

  balance, it affrmatively 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…

• #45

  nolithic. 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…

• #46

  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 4 As Justice Sotomayor emphasizes, ante, at 92, n. 4, the plurality said that…

• #47

  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 con- trary. But the question here is whether a subjective intent requirement is the consti…

• #48

  et al. as Amici Curiae 28–30 (States “have a range of pol- Page Proof Pending Publication 118 COUNTERMAN v. COLORADO Barrett, J., dissenting icy reasons for using subjective standards for penalizing threats of violence” and many “choose to require proof of a speaker's subjective mental state” in some situations …

• #49

  Consider, for example, threat victims who seek restraining orders to protect themselves from their harassers. See, e. g., United States v. Elonis, 841 F. 3d 589, 593 (CA3 2016) (defendant's wife sought a restraining order after he wrote on Facebook, “I'm not going to rest until your body is a mess, soaked in bloo…

• #50

  D. J. M. v. Hannibal Public School Dist. No. 60, 647 F. 3d 754, 758 (CA8 2011); Lovell v. Poway Unifed School District, 90 F. 3d 367, 369, 372–373 (CA9 1996) (similar); Haughwout v. Tordenti, 332 Conn. 559, 561–562, 211 A. 3d 1, 3–4 (2019) (similar). True threats can also be expressed by a parent, a teacher, or a…

• #51

  include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made: None