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 notify the Reporter 

of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 
Page Proof Pending Publication

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 Facebook messages to C. W., a local singer and musician. The two had never 

met, and C. W. did not respond. In fact, she tried repeatedly to block 

him, but each time, Counterman created a new Facebook account and 

resumed contacting C. W. Several of his messages envisaged violent 

harm befalling her. Counterman's messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined social 

engagements, and canceled some of her performances. C. W. eventually 

contacted the authorities. The State charged Counterman under a Colorado statute making it unlawful to “[r]epeatedly . . . make[ ] any form 

of communication with another person” in “a manner that would cause 

a reasonable person to suffer serious emotional distress and does cause 

that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. 

§ 18–3–602(1)(c). Counterman moved to dismiss the charge on First 

Amendment grounds, arguing that his messages were not “true threats” 

and therefore could not form the basis of a criminal prosecution. Following Colorado law, the trial court rejected that 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 threatening character. The Colorado Court of Appeals disagreed and affrmed 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 
Page Proof Pending Publication

Cite as: 600 U. S. 66 (2023) 67 

Syllabus 

true threats from liability. That is because bans on speech have the 

potential to chill, or deter, speech outside their boundaries. An important tool to prevent that outcome is to condition liability on the State's 

showing of a culpable mental state. Speiser v. Randall, 357 U. S. 513, 

526. That kind of “strategic protection” features in this Court's precedent concerning the most prominent categories of unprotected speech. 

Gertz v. Robert Welch, Inc., 418 U. S. 323, 342. With regard to defamation, 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 mistaking whether a statement is a threat, fear of the legal system getting 

that judgment wrong, and fear of incurring legal costs all may lead a 

speaker to swallow words that are in fact not true threats. Insistence 

on a subjective element in unprotected-speech cases, no doubt, has a 

cost: Even as it lessens chill of protected speech, it makes prosecution 

of otherwise proscribable, and often dangerous, communications harder. 

But a subjective standard is still required for true threats, lest prosecutions chill too much protected, non-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 recklessness 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 advocacy a hair's-breadth away from incitement—is not present here. For 

true threats, recklessness strikes the right balance, offering “enough 

`breathing space' for protected speech,” without 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. Bergman, and Eric M. Freedman; for the Cato Institute et al. by Jay R. 

Schweikert and John W. Whitehead; for the Electronic Frontier Foundation et al. by David Greene; for the Reporters Committee for Freedom of 

the Press by Bruce D. Brown; and for Elena Cordonean et al. by Norman 

M. Garland and Michael M. Epstein, both pro se. 

Briefs of amici curiae urging 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, Priyanka 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 District of Columbia, Anne E. Lopez of Hawaii, Brenna Bird of Iowa, Aaron 

Page Proof Pending Publication
Page Proof Pending Publication

Cite as: 600 U. S. 66 (2023) 69 

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 disregarded a substantial risk that his communications would be 

viewed as threatening violence. The State need not prove 

any more demanding form of subjective intent to threaten 

another. 

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. Mirenda; 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 hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. never responded. 

In fact, she repeatedly blocked Counterman. But each time, 

he created a new Facebook account and resumed his contacts. Some of his messages were utterly prosaic (“Good 

morning sweetheart”; “I am going to the store would you 

like anything?”)—except that they were coming from a total 

stranger. 3 App. 465. Others suggested that Counterman 

might be surveilling C. W. He asked “[w]as that you in the 

white Jeep?”; referenced “[a] 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 expressed anger at C. W. and envisaged harm befalling her: 

“Fuck off permanently.” Ibid. “Staying in cyber life is 

going to kill you.” Ibid. “You're not being good for human 

relations. Die.” Ibid. 

The messages put C. W. in fear and upended her daily existence. She believed that Counterman was “threat[ening 

her] life”; “was very fearful that he was following” her; and 

was “afraid [she] would get hurt.” 2 App. 177, 181, 193. As 

a result, she had “a lot of trouble sleeping” and suffered from 

severe anxiety. Id., at 200; see id., at 194–198. She stopped 

walking alone, declined social engagements, and canceled 

some of her performances, though doing so caused her fnancial strain. See id., at 182–183, 199, 201–206, 238–239. 

Eventually, C. W. decided that she had to contact the authorities. Id., at 184. 

Colorado charged Counterman under a statute making it 

unlawful to “[r]epeatedly . . . make[ ] any form of communication with another person” in “a manner that would cause a 

reasonable person to suffer serious emotional distress and 

does cause that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. § 18–3–602(1)(c) (2022). The only 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 71 

Opinion of the Court 

evidence the State proposed to introduce at trial were his 

Facebook messages.1 

Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true 

threats” and therefore could not form the basis of a criminal 

prosecution. In line with Colorado law, the trial court assessed the true-threat issue using an “objective `reasonable 

person' standard.” People v. Cross, 127 P. 3d 71, 76 (Colo. 

2006). Under that standard, the State had to show that a 

reasonable person would have viewed the Facebook messages as threatening. By contrast, the State had no need to 

prove that Counterman had any kind of “subjective intent to 

threaten” C. W. In re R. D., 464 P. 3d 717, 731, n. 21 (Colo. 

2020). The court decided, after “consider[ing] the totality 

of the circumstances,” that Counterman's statements “r[o]se 

to the level of a true threat.” 497 P. 3d, at 1045. Because 

that was so, the court ruled, the First Amendment posed no 

bar to prosecution. The court accordingly sent the case to 

the jury, which found Counterman guilty as charged. 

The Colorado Court of Appeals affrmed. Counterman 

had urged the court to hold that the First Amendment required the State to show that he was aware of the threatening nature of his statements. Relying on its precedent, the 

court turned the request down: It “decline[d] today to say 

that a speaker's subjective intent to threaten is necessary” 

under the First Amendment to procure a conviction for 

threatening communications. Id., at 1046 (quoting R. D., 464 

1 The statute Counterman was charged with violating is titled a “stalking” statute and also prohibits “[r]epeatedly follow[ing], approach[ing], 

contact[ing], [or] plac[ing] under surveillance” another person. § 18–3– 

602(1)(c). But the State had no evidence, beyond what Counterman 

claimed, that he actually had followed or surveilled C. W. For example, 

C. W. had never noticed anything of that kind. So the prosecution based 

its case solely on Counterman's “[r]epeated[ ] . . . communication[s]” with 

C. W. Ibid. 

Page Proof Pending Publication
72 COUNTERMAN v. COLORADO 

Opinion of the Court 

P. 3d, at 731, n. 21). Using the established objective standard, the court then approved the trial court's ruling that 

Counterman's messages were “true threats” and so were not 

protected by the First Amendment. 497 P. 3d, at 1050. 

The Colorado Supreme Court denied review. 

Courts are divided about (1) whether the First Amendment requires proof of a defendant's subjective mindset in 

true-threats cases, and (2) if so, what mens rea standard is 

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 statement 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 truethreats case prove that the defendant was aware in some 

way of the threatening nature of his communications.2 Colorado argues that there is no such requirement. Counterman 

contends that there is one, based mainly on the likelihood 

that the absence of such a mens rea requirement will chill 

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 defendant delivers a sealed envelope without knowing that a threatening 

letter is inside, he cannot be liable for the communication. So too (though 

this common example seems fairly preposterous) if a “foreigner, ignorant 

of the English language, who would not know the meaning of the words,” 

somehow manages to convey an English-language threat. Elonis v. 

United States, 575 U. S. 723, 738 (2015) (internal quotation marks omitted). 

The question in this case arises when the defendant (unlike in those hypotheticals) understands the content of the words, but may not grasp that 

others would 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 precedent. To 

combat the kind of chill he references, our decisions have 

often insisted on protecting even some historically unprotected speech through the adoption of a subjective mentalstate element. We follow the same path today, holding that 

the State must prove in true-threats cases that the defendant had some understanding of his statements' threatening 

character. The second issue here concerns what precise 

mens rea standard 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 require that the State prove the defendant had any more specifc intent to threaten the victim. 

A 

“From 1791 to the present,” the First Amendment has 

“permitted restrictions upon the content of speech in a few 

limited areas.” United States v. Stevens, 559 U. S. 460, 468 

(2010). These “historic and traditional categories” are “long 

familiar to the bar” and perhaps, too, the general public. 

Ibid. One is incitement—statements “directed [at] producing imminent lawless action,” and likely to do so. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam). 

Another is defamation—false statements of fact harming 

another's reputation. See Gertz v. Robert Welch, Inc., 418 

U. S. 323, 340, 342 (1974). Still a third is obscenity—valueless material “appeal[ing] to the prurient interest” and describing “sexual conduct” in “a patently offensive way.” 

Miller v. California, 413 U. S. 15, 24 (1973). This Court has 

“often described [those] historically unprotected categories 

of speech as being of such slight social value as a step to 

truth that any beneft that may be derived from them is 

Page Proof Pending Publication
74 COUNTERMAN v. COLORADO 

Opinion of the Court 

clearly outweighed by the social interest” in their proscription. Stevens, 559 U. S., at 470 (internal quotation marks 

omitted; emphasis deleted). 

“True threats” of violence is another historically unprotected category of communications. Virginia v. Black, 538 

U. S. 343, 359 (2003); see United States v. Alvarez, 567 U. S. 

709, 717–718 (2012) (plurality opinion). The “true” in that 

term distinguishes what is at issue from jests, “hyperbole,” 

or other statements that when taken in context do not convey a real possibility that violence will follow (say, “I am 

going to kill you for showing up late”). Watts v. United 

States, 394 U. S. 705, 708 (1969) (per curiam). True threats 

are “serious expression[s]” conveying that a speaker means 

to “commit an act of unlawful violence.” Black, 538 U. S., 

at 359. Whether the speaker is aware of, and intends to 

convey, the threatening aspect of the message is not part 

of what makes a statement a threat, as this Court recently 

explained. See Elonis v. United States, 575 U. S. 723, 733 

(2015). The existence of a threat depends not on “the mental state of the author,” but on “what the statement conveys” 

to the person on the other end. Ibid. When the statement 

is understood as a true threat, all the harms that have long 

made threats unprotected naturally follow. True threats 

subject individuals to “fear of violence” and to the many 

kinds of “disruption that fear engenders.” Black, 538 U. S., 

at 360 (internal quotation marks omitted). The facts of this 

case well illustrate how.3 

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 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 75 

Opinion of the Court 

Yet the First Amendment may still demand a subjective 

mental-state requirement shielding some true threats from 

liability. The reason relates to what is often called a chilling 

effect. Prohibitions on speech have the potential to chill, or 

deter, speech outside their boundaries. A speaker may be 

unsure about the side of a line on which his speech falls. Or 

he may worry that the legal system will err, and count 

speech that is permissible as instead not. See Philadelphia 

Newspapers, Inc. v. Hepps, 475 U. S. 767, 777 (1986). Or he 

may simply be concerned about the expense of becoming entangled in the legal system. The result is “self-censorship” 

of speech that could not be proscribed—a “cautious and restrictive exercise” of First Amendment freedoms. Gertz, 

418 U. S., at 340. And an important tool to prevent that 

outcome—to stop people from steering “wide[ ] of the unlawful zone”—is to condition liability on the State's showing of 

a culpable mental state. Speiser v. Randall, 357 U. S. 513, 

526 (1958). Such a requirement comes at a cost: It will 

shield some otherwise proscribable (here, threatening) 

speech because the State cannot prove what the defendant 

thought. But the added element reduces the prospect of 

chilling fully protected expression. As this Court has 

noted, the requirement lessens “ the hazard of selfcensorship” by “compensat[ing]” for the law's uncertainties. 

Mishkin v. New York, 383 U. S. 502, 511 (1966). Or said 

a bit differently: “[B]y reducing an honest speaker's fear 

that he may accidentally [or erroneously] incur liability,” a 

mens rea requirement “provide[s] `breathing room' for more 

valuable speech.” Alvarez, 567 U. S., at 733 (Breyer, J., 

concurring in judgment). 

That kind of “strategic protection” features in our precedent concerning the most prominent categories of historically unprotected speech. Gertz, 418 U. S., at 342. Defamathat Black concerned a different part of the statute, preventing consideration of contextual factors in assessing whether a statement was a threat). 

Page Proof Pending Publication
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 recover for the injury such a statement causes unless the 

speaker acted with “knowledge that it was false or with 

reckless disregard of whether it was false or not.” New 

York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964); see 

Garrison v. Louisiana, 379 U. S. 64, 74 (1964) (using the 

same standard for criminal libel). That rule is based on fear 

of “self-censorship”—the worry that without such a subjective mental-state requirement, the uncertainties and expense of litigation will deter speakers from making even 

truthful statements. Sullivan, 376 U. S., at 279. The First 

Amendment, we have concluded, “requires that we protect 

some falsehood in order to protect speech that matters.” 

Gertz, 418 U. S., at 341. 

The same idea arises in the law respecting obscenity and 

incitement to unlawful conduct. Like threats, incitement inheres in particular words used in particular contexts: Its 

harm can arise even when a clueless speaker fails to grasp 

his expression's nature and consequence. But still, the First 

Amendment precludes punishment, whether civil or criminal, 

unless the speaker's words were “intended” (not just likely) 

to produce imminent disorder. Hess v. Indiana, 414 U. S. 

105, 109 (1973) (per curiam); see Brandenburg, 395 U. S., 

at 447; NAACP v. Claiborne Hardware Co., 458 U. S. 886, 

927–929 (1982). That rule helps prevent a law from deterring “mere advocacy” of illegal acts—a kind of speech falling within the First Amendment's core. Brandenburg, 395 

U. S., at 449. And for a similar reason, the First Amendment demands proof of a defendant's mindset to make out an 

obscenity case. Obscenity is obscenity, whatever the purveyor's mental state. But we have repeatedly recognized 

that punishment depends on a “vital element of scienter”— 

often described as the defendant's awareness of “the characPage Proof Pending Publication
Page Proof Pending Publication

Cite as: 600 U. S. 66 (2023) 77 

Opinion of the Court 

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 expression. 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 subjective element in a true-threats case. This Court again must 

consider the prospect of chilling non-threatening expression, 

given the ordinary citizen's predictable tendency to steer 

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 materials,] not simply [their] contents.” Elonis, 575 U. S., at 739–740 (discussing 

Hamling, 418 U. S., at 120–123, and Mishkin, 383 U. S., at 510). 

The dissent's use of two other First Amendment categories—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 commercial speech is less vulnerable to chill than most other speech is. See, 

e. g., Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 481 

(1989). And it is the fear of chill that has led to state-of-mind requirements in the context of unprotected speech. 
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 objective standard, turning only on how reasonable observers 

would construe a statement in context, would make people 

give threats “a wide berth.” Id., at 47 (concurring opinion). 

And so use of that standard would discourage the “uninhibited, robust, and wide-open debate that the First Amendment is intended to protect.” Id., at 48 (quoting Sullivan, 

376 U. S., at 270). 

The reasoning—and indeed some of the words—came 

straight from this Court's decisions insisting on a subjective 

element in other unprotected-speech cases, whether involving defamation, incitement, or obscenity. No doubt, the approach in all of those cases has a cost: Even as it lessens 

chill of protected speech, it makes prosecution of otherwise 

proscribable, and often dangerous, communications harder. 

And the balance between those two effects may play out differently in different contexts, as the next part of this opinion 

discusses. But the ban on an objective standard remains 

the same, lest true-threats prosecutions chill too much protected, non-threatening expression. 

B 

The next question concerns the type of subjective standard the First Amendment requires. The law of mens rea 

offers three basic choices. Purpose is the most culpable 

level in the standard mental-state hierarchy, and the hardest 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 79 

Opinion of the Court 

to prove. A person acts purposefully when he “consciously 

desires” a result—so here, when he wants his words to be 

received as threats. United States v. Bailey, 444 U. S. 394, 

404 (1980). Next down, though not often distinguished from 

purpose, is knowledge. Ibid. A person acts knowingly 

when “he is aware that [a] result is practically certain to 

follow”—so here, when he knows to a practical certainty that 

others will take his words as threats. Ibid. (internal quotation marks omitted). A greater gap separates those two 

from recklessness. A person acts recklessly, in the most 

common formulation, when he “consciously disregard[s] a 

substantial [and 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 “deliberate decision to endanger another.” Voisine, 579 U. S., at 

694. In the threats context, it means that a speaker is 

aware “that others could regard his statements as” threatening violence and “delivers them anyway.” Elonis, 575 U. S., 

at 746 (Alito, J., concurring in part and dissenting in part).5 

Among those standards, recklessness offers the right path 

forward. We have so far mostly focused on the constitutional interest in free expression, and on the correlative need 

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 quotation marks omitted)). 

Page Proof Pending Publication
80 COUNTERMAN v. COLORADO 

Opinion of the Court 

to take into account threat prosecutions' chilling effects. 

But the precedent we have relied on has always recognized—and insisted on “accommodat[ing]”—the “competing 

value[ ]” in regulating historically unprotected expression. 

Gertz, 418 U. S., at 348. Here, as we have noted, that value 

lies in protecting against the profound harms, to both individuals and society, that attend true threats of violence—as 

evidenced in this case. See supra, at 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 mentalstate standard, we necessarily impede some true-threat 

prosecutions. And as we go up the subjective mens rea ladder, that imposition on States' capacity to counter true 

threats becomes still greater—and, presumably, with diminishing returns for protected expression. In advancing past 

recklessness, we make it harder for a State to substantiate 

the needed inferences about mens rea (absent, as is usual, 

direct evidence). And of particular importance, we prevent 

States from convicting morally culpable defendants. See 

Elonis, 575 U. S., at 745 (opinion of Alito, J.). For reckless 

defendants have done more than make a bad mistake. They 

have consciously accepted a substantial risk of inficting serious 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 halfcentury in which that standard has governed, few have suggested that it needs to be higher—in other words, that still 

more First Amendment “breathing space” is required. 

Gertz, 418 U. S., at 342. And we see no reason to offer 

greater insulation to threats than to defamation. See 

Elonis, 575 U. S., at 748 (opinion of Alito, J.). The societal 

Page Proof Pending Publication
Page Proof Pending Publication

Cite as: 600 U. S. 66 (2023) 81 

Opinion of the Court 

interests in countering the former are at least as high. And 

the protected speech near the borderline of true threats 

(even though sometimes political, as in Rogers) is, if anything, further from the First Amendment's central concerns 

than the chilled speech in Sullivan-type cases (i. e., truthful 

reputation-damaging statements about public 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'sbreadth away from political “advocacy”—and particularly 

from strong protests against the government and prevailing 

social order. Brandenburg, 395 U. S., at 447. Such protests 

gave rise to all the cases in which the Court demanded a 

showing of intent. See ibid.; Hess, 414 U. S., at 106; Claiborne Hardware Co., 458 U. S., at 888, 928. And the Court 

decided those cases against a resonant historical backdrop: 

the Court's failure, in an earlier era, to protect mere advocacy of force or lawbreaking from legal sanction. See, e. g., 

Whitney v. California, 274 U. S. 357 (1927); Gitlow v. New 

York, 268 U. S. 652 (1925); Abrams v. United States, 250 U. S. 

616 (1919). A strong intent requirement was, and remains, 

one way to guarantee history was not repeated. It was a 

way to ensure that efforts to prosecute incitement would not 

bleed over, either directly or through a chilling effect, to dissenting political speech at the First Amendment's core. But 

the potency of that protection is not needed here. For the 

most part, the speech on the other side of the true-threats 

boundary line—as compared with the advocacy addressed in 

our incitement decisions—is neither so central to the theory 

of the First Amendment nor so vulnerable to government 

prosecutions. It is not just that our incitement decisions are 
82 COUNTERMAN v. COLORADO 

Opinion of the Court 

distinguishable; it is more that they compel the use of a distinct standard here.6 

That standard, again, is recklessness. It offers “enough 

`breathing space' for protected speech,” without 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 declining one of those two alternative paths, something more important is gained: Not “having it all”—because that is impossible—but having much of what is important on both sides 

of the scale.7 

III 

It is time to return to Counterman's case, though only 

a few remarks are necessary. Counterman, as described 

above, was prosecuted in accordance with an objective standard. See supra, at 71–72. The State had to show only that 

a reasonable person would understand his statements 

as threats. It did not have to show any awareness on 

his part that the statements could be understood that way. 

For the reasons stated, that is a violation of the First 

Amendment. 

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 concurrence'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.” 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 83 

Opinion of Sotomayor, J. 

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 burden our Nation's commitment to free expression. “From 

1791 to the present, however, the First Amendment has permitted restrictions upon the content of speech in a few limited areas.” United States v. Stevens, 559 U. S. 460, 468 

(2010) (internal quotation marks omitted). These categories 

must be “well-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 tradition of criminalizing threats stretching back centuries. This 

includes punishing single utterances based on the message 

conveyed. One paradigmatic example of this would be writing and mailing a letter threatening to assassinate the President. Such laws are plainly important. There is no longstanding tradition, however, of punishing speech merely 

because it is unintentionally threatening. Instead, this 

Court's precedent, along with historical statutes and cases, 

refect a commonsense understanding that threatening someone is an intentional act. As to what intent is needed, “[t]raditionally, one intends certain consequences when he desires 

that his acts cause those consequences or knows that those 

consequences are substantially certain to result from his 

acts.” Tison v. Arizona, 481 U. S. 137, 150 (1987) (internal 

Page Proof Pending Publication
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 recklessness is amply suffcient. Where I part ways with the Court 

is that I would not reach the distinct and more complex question whether a mens rea of recklessness is suffcient for truethreats 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 statements can also be punished if they fall into another category 

of unprotected speech, such as speech integral to criminal 

conduct. Or they might warrant less First Amendment 

protection for other reasons. On the other hand, there is 

the question of what constitutes the well-defned and longstanding category of unprotected true threats. It is with 

this latter question that I do not see the need to address 

Page Proof Pending Publication
Page Proof Pending Publication

Cite as: 600 U. S. 66 (2023) 85 

Opinion of Sotomayor, J. 

whether a mens rea of recklessness is suffcient across the 

board. 

First, the courts below did not address whether recklessness 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 presentation. 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 involving threatening speech, this case does not require resort 

to the true-threats exemption to the First Amendment. 

True-threats doctrine covers content-based prosecutions 

for single utterances of “pure speech,” which need not even 

be communicated to the subject of the threat. Watts v. 

United States, 394 U. S. 705, 707 (1969) (per curiam). The 

First Amendment would normally place strict limits on such 

prosecutions. So there is typically a need to determine 

whether the speech in question falls within the traditionally 

unprotected category of true threats. 

This is not such a case, however. Petitioner was convicted 

for “stalking [causing] serious emotional distress” for a combination of threatening statements and repeated, unwanted, 

direct contact with C. W. 497 P. 3d 1039, 1043 (Colo. App. 

2021).1 This kind of prosecution raises fewer First Amendment concerns for a variety of reasons. Stalking can be carried out through speech but need not be, which requires less 

First Amendment scrutiny when speech is swept in. See, 

e. g., Rumsfeld v. Forum for Academic and Institutional 

1 The statute of conviction applies to someone who “[r]epeatedly follows, 

approaches, contacts, places under surveillance, or makes any form of communication with another person . . . in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person 

. . . serious emotional distress.” Colo. Rev. Stat. § 18–3–602(1)(c) (2022). 
86 COUNTERMAN v. COLORADO 

Opinion of Sotomayor, J. 

Rights, Inc., 547 U. S. 47, 62 (2006). The content of the repeated communications can sometimes be irrelevant, such as 

persistently calling someone and hanging up, or a stream of 

“utterly prosaic” communications. Ante, at 70. Repeatedly forcing intrusive communications directly into the personal life of “an unwilling recipient” also enjoys less protection. Rowan v. Post Offce Dept., 397 U. S. 728, 738 (1970). 

Finally, while there is considerable risk with a single intemperate utterance that a speaker will “accidentally or erroneously incur liability,” ante, at 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 Truethreats doctrine came up below only because of the lower 

courts' doubtful assumption that petitioner could be prosecuted only if his actions fell under the true-threats exception. 

I do not think that is accurate, given the lessened First 

Amendment concerns at issue. In such cases, recklessness 

is amply suffcient. And I would stop there. There is simply no need to reach out in this stalking case to determine 

whether anything more than recklessness is needed for punishing true threats generally. 

II 

Lest there be any doubt, the First Amendment stakes 

around the defnition of “true threats” are high indeed. The 

First Amendment's mantle covers speech that is “vituperative, abusive and inexact.” Watts, 394 U. S., at 708. “It 

might be tempting to dismiss” seemingly low-value speech 

“as unworthy of . . . robust First Amendment protections.” 

2 For these reasons, stalking prosecutions that do not rely on the content 

of communications would raise even fewer First Amendment concerns. 

Page Proof Pending Publication
Page Proof Pending Publication

Cite as: 600 U. S. 66 (2023) 87 

Opinion of Sotomayor, J. 

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 artistic value' (let alone serious value), but it is still sheltered 

from Government regulation.” Stevens, 559 U. S., at 479 

(emphasis deleted). First Amendment vigilance is especially important when speech is disturbing, frightening, or 

painful, because the undesirability of such speech will place 

a heavy thumb in favor of silencing it. In response, the 

Court has upheld First Amendment rights in the context of 

gruesome animal cruelty videos, id., at 472; cross burning, 

Virginia v. Black, 538 U. S. 343, 347–348 (2003); hateful rhetoric in protests of the funerals of fallen soldiers, Snyder v. 

Phelps, 562 U. S. 443, 448–449, 458 (2011); and computergenerated images of child pornography, Ashcroft v. Free 

Speech Coalition, 535 U. S. 234, 239–240, 258 (2002). 

The risk of overcriminalizing upsetting or frightening 

speech has only been increased by the internet. Our society's discourse occurs more and more in “the `vast democratic forums of the Internet' in general, and social media in 

particular.” Packingham v. North Carolina, 582 U. S. 98, 

104 (2017) (citation omitted). “Rapid changes in the dynamics of communication and information transmission” have led 

to equally rapid and ever-evolving changes “in what society 

accepts as proper behavior.” Ontario v. Quon, 560 U. S. 

746, 759 (2010). Different corners of the internet have considerably different norms around appropriate speech. Online communication can also lack many normal contextual 

clues, such as who is speaking, tone of voice, and expression. 

Moreover, it is easy for speech made in a one context to inadvertently reach a larger audience. 

Without suffcient protection for unintentionally threatening speech, a high school student who is still learning norms 

around appropriate language could easily go to prison for 

sending another student violent music lyrics, or for unrefectingly 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 moment, someone may post an enraged comment under a news 

story about a controversial topic. Another person might 

reply equally heatedly. In a Nation that has never been 

timid about its opinions, political or otherwise, this is 

commonplace. 

Many of this Court's true-threats cases involve such 

charged political speech. See Black, 538 U. S., at 348–349 

(Ku Klux Klan rally); Watts, 394 U. S., at 707 (antiwar protest); Rogers v. United States, 422 U. S. 35, 41–42, 47–48 

(1975) (Marshall, J., concurring) (opposition to Nixon's policies toward China). Amici give further contemporary examples of such speech from across the political spectrum. 

See, e. g., Brief for American Civil Liberties Union et al. as 

Amici Curiae 24–29. Much of this speech exists in a gray 

area where it will be quite hard to predict whether a jury 

would fnd it threatening. And the ubiquity of such speech 

raises the possibility of highly discretionary enforcement. 

The burdens of overcriminalization will fall hardest on certain groups. A jury's determination of when angry hyperbole crosses the line will depend on amorphous norms around 

language, which will vary greatly from one discursive community to another. Juries' decisions will refect their “background knowledge and media consumption.” Minnesota 

Voters Alliance v. Mansky, 585 U. S. –––, ––– (2018). 

“[S]peakers whose ideas or views occupy the fringes of our 

society have more to fear, for their violent and extreme rhetoric, even if intended simply to convey an idea or express 

displeasure, is more likely to strike a reasonable person as 

threatening.” United States v. White, 670 F. 3d 498, 525 

(CA4 2012) (Floyd, J., concurring in part and dissenting in 

part). Members of certain groups, including religious and 

cultural minorities, can also use language that is more susceptible to being misinterpreted by outsiders. And unfortuPage Proof Pending Publication
Page Proof Pending Publication

Cite as: 600 U. S. 66 (2023) 89 

Opinion of Sotomayor, J. 

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 Threatening Nature of “Rap” Music, 22 J. Psychol. Pub. Pol'y & L. 

281, 281–282, 288–290 (2016). 

On the other hand, the internet has also made stalking and 

harassment even easier. Stalking can be devastating and 

dangerous. See Brief for First Amendment Scholars as 

Amici Curiae 7–8. Lives can be ruined, and in the most 

tragic instances, lives are lost. Ibid. Harassers can hide 

behind online anonymity while tormenting others. This 

happens in the context of intimate relationships and it happens with strangers. Overly constraining our society's ability to respond to stalking would come at a real cost. For 

the reasons given, however, a mens rea standard for true 

threats would not hinder stalking prosecutions. See supra, 

at 85–86. 

Even isolated threatening speech can do real harm. Such 

speech not only disrupts lives, it can silence the speech of 

others who become afraid to speak out. A mens rea requirement would not, however, present an uncommon or insurmountable barrier to true-threats prosecutions.3 Nonetheless, under such a standard, there will be some speech 

that some 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 constitutes a true threat. In undertaking that analysis, the Court 

and I part ways on the order of operations. The Court be3 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 intended 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 framework for balancing our society's commitment to free expression with other interests. Stevens, 559 U. S., at 470. If 

courts were at liberty to 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 longstanding 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 inadvertently threatening speech. 

A 

A natural place to begin, one might think, would be with 

this Court's most recent decision involving the First Amendment, mens rea, and true threats. Yet to read the Court's 

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 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 contained 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 defning the category of true threats. “ `True threats,' ” the 

majority explained “encompass those statements where the 

speaker means to communicate a serious expression of an 

intent to commit an act of unlawful violence.” Id., at 359 

(emphasis added). However, “[t]he speaker need not actually intend to carry out the threat,” as true threats also include intimidation alone. Id., at 359–360. And “[i]ntimidation in the constitutionally proscribable sense of the word is 

a type of true threat, where a speaker directs a threat to a 

person or group of persons with the intent of placing the 

victim in fear of bodily harm or death.” Id., at 360 (emphasis added). 

To the extent the Virginia statute covered intentionally 

threatening cross burning, it was thus tailored to cover only 

true threats. Critically, however, the statute also provided 

that “ `[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate.' ” Id., at 348. In other 

words, the all-important intent requirement could be satisfed 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 

Page Proof Pending Publication
92 COUNTERMAN v. COLORADO 

Opinion of Sotomayor, J. 

the statute could not stand. Id., at 367, 379. For the plurality, the intent requirement was “the very reason why a 

State may ban cross burning” because it “distinguish[ed]” 

between the constitutionally unprotected true threat of 

burning a cross with intent to intimidate and “cross burning 

[as] a statement of ideology.” Id., at 365–366.4 For Justice 

Scalia, the “plurality [was] correct in all of this.” Id., at 372 

(opinion concurring in part, concurring in judgment in part, 

and dissenting in part). There was a constitutional need for 

a distinction between cross burning “ `intended to intimidate' ” and cross burning as “ `a statement of ideology.' ” 

Ibid. The plurality and Justice Scalia only parted ways as 

to whether to hold that the statute was “facially invalid,” id., 

at 367 (plurality opinion), or just that the jury instructions 

made it unclear “whether the jury has rendered its verdict 

(as it must)” with suffcient consideration of “intent to intimidate,” id., at 380 (opinion of Scalia, J.) (emphasis added). 

The through-line is not hard to discern. First, unprotected true threats include a subjective mens rea requirement. Id., at 360 (majority opinion). Second, as a result, 

“Virginia's statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate.” Id., at 362 (majority opinion). Third, a conviction 

could not stand if it had categorically dispensed with that 

intent requirement, id., at 365–366 (plurality opinion), or if 

the jury had 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 necessary 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 context to the extent it was relevant to the mens rea requirement needed to 

render the statute constitutional. Id., at 365–366. 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 93 

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. Historically, threat crimes covered the same kind of subjectively 

threatening speech Black invoked. 

In reviewing this history, it is also vital to keep in mind 

the nature of the inquiry. Removing speech from normal 

First Amendment scrutiny is a major shift in the balance of 

expression and public interest that our Constitution generally strikes. The inquiry is therefore whether there is a 

“long-settled tradition” of prohibiting inadvertently threatening speech. Stevens, 559 U. S., at 469. None of the other 

opinions, however, identify a historical case that expressly 

raised the question whether a subjective mens rea is required and held that it is not. That is a remarkable thing 

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 because “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 requirements”). This puzzling interpretation does not explain why an illusory mens rea requirement in a Virginia law would pose any First Amendment problems if the Amendment did not impose a mens rea requirement 

of this kind. After all, “[w]hy would the First Amendment care how a 

jury goes about 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. 

Page Proof Pending Publication
Page Proof Pending Publication

94 COUNTERMAN v. COLORADO 

Opinion of Sotomayor, J. 

when one considers that the sample size consists of decisions 

from both sides of the Atlantic across centuries. 

There was a long tradition of crimes for threatening another person in order to extort them. See, e. g., 1796 N. J. 

Laws § 57, p. 108. Colorado and the United States admit 

that this core category of threat crimes required intent. 

Even beyond that, a subjective mens rea remained a key 

component of threat offenses. An 18th-century English 

statute made it a capital offense to “knowingly send any letter . . . threatening to kill or murder any of his Majesty's 

subject or subjects” or to threaten arson. 27 Geo. II, c. 15, 

in 21 Eng. Stat. at Large 184 (1754). A leading treatise explained that the statute was “levelled against such whose 

intention it was [to] obtain their object by creating terror in 

[the victim's] mind.” 2 W. Russell & D. Davis, Crimes & 

Misdemeanors *1845 (emphasis added). 

Consistent with this, defendants were convicted of “knowingly, wilfully, and feloniously” sending threatening letters. 

Rex v. Tyler, 1 Mood. 428, 168 Eng. Rep. 1330 (1835); Rex v. 

Paddle, Russ. & Ry. 484, 168 Eng. Rep. 910 (1822) (indictment for “knowingly, unlawfully, wickedly, and feloniously” 

sending a threatening letter); see also King v. Girdwood, 

1 Leach 142, 168 Eng. Rep. 173 (1776) (indictment for “feloniously” sending a threatening letter). “ `[K]nowingly and 

wilfully' effecting any result applies to those who know that 

the acts performed will have that effect, and perform 

them with the intention that such shall be their operation.” 

12 American and English Encyclopaedia of Law 522–524 

(J. Merrill ed. 1890); see also J. Boag, Imperial Lexicon of the 

English Language 530 (1850) (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 evidence. See King v. Philipps, 6 East 464, 475, 102 Eng. Rep. 

1365, 1369 (1805). Courts thus considered “the threat intended to be made by the prisoner” and “what he meant by 
Cite as: 600 U. S. 66 (2023) 95 

Opinion of Sotomayor, J. 

what he had written” in determining whether he had violated the statute. Regina v. Hill, 5 Cox 233, 235 (Crim. Cas. 

1851); see also King v. John and Mary Hammond, 1 Leach 

444, 446, 168 Eng. Rep. 324, 325 (1787) (describing the offense 

of sending a threatening letter “to the party whose fears the 

threat it contains was calculated to alarm”). 

Threat laws in the United States were of a piece. Some 

state laws about threats expressly required maliciousness. 

See Me. Rev. Stat., Tit. 12, ch. 154, § 26 (1840); 1884 La. Acts 

No. 64, § 1, p. 86. Courts more generally emphasized the 

importance of a mens rea requirement. See, e. g., State v. 

Benedict, 11 Vt. 236, 239 (1839). The North Carolina Supreme Court, for example, singled out threats as quintessential examples of offenses where it is “necessary” to prove the 

“intent of the particular letter.” State v. Murphy, 84 N. C. 

742, 743–744 (1881). And where state statutes may have 

been silent on intent to threaten, courts read such requirements in. See Commonwealth v. Morton, 140 Ky. 628, 631, 

131 S. W. 506, 507–508 (1910) (letter must be “calculated to 

alarm, disturb, intimidate, or injure”); see also State v. Stewart, 90 Mo. 507, 512, 2 S. W. 790, 792 (1887) (jury instruction 

requiring that “ `defendant intended to threaten' ”). 

Leading treatises also explained the importance of mens 

rea. See 25 American and English Encyclopaedia of Law 

1071 (C. Williams ed. 1894) (when there is a question as to 

“whether or not the letter contains the threat alleged, the 

intent is a question for the jury”); see also 2 R. Anderson, 

Wharton's Criminal Law and Procedure § 803, pp. 659–660 

(1957) (threats must be “intended to put the person threatened in fear of bodily harm”); 2 J. Bishop, Commentaries on 

the Criminal Law § 1201, p. 664 (6th ed. 1877) (“The intent, 

both under the unwritten law and under the statutes, must 

be evil”). 

Against that backdrop, I return to the inquiry at hand: 

whether there is a “long-settled” or “well-established” history of prosecuting inadvertently threatening speech. 

Page Proof Pending Publication
96 COUNTERMAN v. COLORADO 

Opinion of Sotomayor, J. 

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 requirement. 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 Scalia, J.). Given the violent history of the symbol, it is hard to 

imagine that any politically motivated cross burning done 

within view of the public could be carried out without awareness of some risk a reasonable spectator would feel threatened. See id., at 388–391 (Thomas, J., dissenting). Recklessness, which turns so heavily on an objective person 

standard, would not have been enough. 

As to the history, it is true that over time courts have 

often used a wide variety of terms to describe mental states. 

See, e. g., Morissette v. United States, 342 U. S. 246, 252 

(1952). Yet “[t]he element of intent in the criminal law has 

traditionally been viewed as a bifurcated concept embracing 

either the specifc requirement of purpose or the more general one of knowledge or awareness.” United States v. 

United States Gypsum Co., 438 U. S. 422, 445 (1978); see also 

Tison, 481 U. S., at 150; Carter v. United States, 530 U. S. 

255, 270 (2000) (describing “feloniously” as equivalent to “ `intent' ”). And at the very least, there is no well-settled history showing that it is enough for a defendant to be merely 

aware of some risk that their statements could be threatening. See, e. g., Borden v. United States, 593 U. S. –––, ––– 

(2021) (plurality opinion) (recklessness requires awareness of 

a level of risk that “need not come anywhere close to a likeliPage Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 97 

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 concerns only further buttress the conclusion that true threats 

should be limited to intentionally threatening speech. Indeed, in the concurrence by Justice Marshall that the Court 

invokes, ante, at 78, he advocated “requir[ing] proof that the 

speaker intended his statement to be taken as a threat,” 

based on concerns about punishing “pure speech.” Rogers, 

422 U. S., at 47–48. In determining the appropriate mens 

rea, the Court analogizes to three categories of traditionally 

unprotected speech: incitement, obscenity, and defamation. 

None of these warrants expanding the narrow boundaries of 

true threats. 

1 

Speech inciting harm is the closest cousin to speech threatening harm. Both incitement and threats put other people 

at risk, and both “sprin[g] from [Justice] Holmes's `clear and 

present danger' test.” G. Blakey & B. Murray, Threats, 

Free Speech, and the Jurisprudence of the Federal Criminal 

Law, 2002 B. Y. U. L. Rev. 829, 1069 (2002). Like true 

threats, incitement's scope is defned in terms of both intention and effect, covering speech “[1] intended to produce, and 

[2] likely to produce, imminent disorder.” Hess v. Indiana, 

414 U. S. 105, 109 (1973) (per curiam). 

Despite their similar nature and source, the Court today 

draws a hard line between the two. Incitement requires 

Page Proof Pending Publication
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 justifes 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 incitement itself is often only a hair's-breadth away from 

threats. 

Take the seminal incitement case NAACP v. Claiborne 

Hardware Co., 458 U. S. 886 (1982). During a civil rights 

boycott, NAACP leader Charles Evers, brother of the murdered civil rights hero Medgar Evers, gave a series of heated 

speeches. See id., at 898–902. He intoned that “boycott violators would be `disciplined' ” and that “ `[i]f we catch any of 

you going in any of them racist stores, we're gonna break 

your damn neck.' ” Id., at 902. The Court acknowledged 

that in this charged context, these speeches “might have 

been understood as inviting an unlawful form of discipline 

or, at least, as intending to create a fear of violence.” Id., 

at 927. Yet 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). 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 99 

Opinion of Sotomayor, J. 

“there [was] no evidence—apart from the speeches themselves—that Evers authorized, ratifed, or directly threatened acts of violence.” Id., at 929. His speeches were thus 

not “ `directed to inciting or producing imminent lawless action' ” and he had not “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 awareness 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 protections to armed Klan members uttering racial slurs, a warning 

that “there might have to be some revengeance taken,” and 

plans for a “ `four hundred thousand strong' ” march in two 

cities. Id., at 446. Then, as now, there would be at least 

some risk that a reasonable resident of those cities could 

feel threatened. 

These concrete examples illustrate a more general principle. Speech inciting imminent and dangerous unlawful activity will reasonably be threatening to those who would be 

harmed by that illegality. In all such cases, whether seminal decisions by this Court or guilty pleas that barely see 

the inside of a courtroom, the Court's decision effectively 

downgrades to recklessness the mens rea required for incitement of unlawful force; prosecutors could now simply charge 

such offenses as true threats. This is particularly worrisome because the standard for recklessness decreases the 

lower the “social utility” of the conduct. 1 W. LaFave, Substantive Criminal Law § 5.4(f) (3d ed. 2018). That is a troubling standard for juries in a polarized nation to apply in 

cases involving heated political speech. This collateral damage can be avoided, however, if intent to threaten is underPage Proof Pending Publication
100 COUNTERMAN v. COLORADO 

Opinion of Sotomayor, J. 

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 observation that “vagueness” of “content-based regulation of 

speech” is of “special concern” when it comes to “criminal 

statute[s].” Reno v. American Civil Liberties Union, 521 

U. S. 844, 871–872 (1997).7 

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 calculated purveyance of flth . . . is exorcised.” Id., at 122 (internal quotation marks omitted). While the Court today asserts that this Court has “never determined the precise 

mens rea” for obscenity, ante, at 82, n. 6, the Court has cited 

a knowledge standard approvingly for half a century, see 

Hamling, 418 U. S., at 123; Elonis, 575 U. S., at 739.8 

7 Analogously, the Court's civil defamation case law recognizes that 

heightened liability can require a heightened mens rea; even as to nonpublic 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 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 101 

Opinion of Sotomayor, J. 

Applying that standard to threats, the “ `calculated purveyance' of a threat would require that [a defendant] know the 

threatening nature of his communication.” Id., at 739. 

The considerations that drove this Court to approve a 

higher mens rea for obscenity apply here as well. With obscenity, the ambiguity comes partly from the reliance on 

“ `contemporary community standards' ” to defne what is obscene. Hamling, 418 U. S., at 129. Such a standard is notoriously amorphous, and will change a great deal between 

communities and over time. The same chilling concerns 

apply to true threats. A recklessness standard based on 

what a reasonable person could 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 framework for defamation. Specifcally, the Court analogizes to 

the “reckless disregard” standard for defamation of public 

fgures or punitive damages for certain claims involving priv. Stevens, 559 U. S. 460, 471 (2010) (quoting New York v. Ferber, 458 U. S. 

747, 759, 761 (1982)); see also Osborne, 495 U. S., at 110–111. Child pornography, with its integral ties to separate criminal conduct, is not a 

strong analogue for threats, which can be feeting statements in total isolation from any other criminality (though it is a stronger analogy to threats 

as part of an unlawful course of stalking). Yet the Court's decision today 

puts child pornography on a First Amendment par with overheated political speech or violent song lyrics. 9 There is a further safeguard in obscenity cases. Something is obscene 

if “taken as a whole, [it] lacks serious literary, artistic, political, or 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 intended 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 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 prosecutions for libel and noted the salutary trend of its “virtual 

disappearance.” Id., at 69–70. The Court approvingly 

cited the Model Penal Code's recommendation that criminal 

libel be limited to speech likely to cause a breach of the peace 

and “calculated” to do so. Id., at 70. This is not a promising theoretical springboard for determining the mens rea required to criminalize other speech. 

If the Court were correct that the Sullivan standard is 

the appropriate analogy, however, then this standard should 

guide how to analyze recklessness in true-threats prosecutions. The generic formulation of recklessness requires that 

an individual disregard a relatively 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 awareness of probable falsity or must have entertained serious 

doubts as to the truth.” Harte-Hanks Communications, 

Inc. v. Connaughton, 491 U. S. 657, 667 (1989) (internal quotation marks and ellipsis omitted). This makes sense. 

Allowing liability for awareness of a small chance that a 

story may be false would undermine the very shield Sullivan erects. 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 103 

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 literature 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, 

Page Proof Pending Publication
104 COUNTERMAN v. COLORADO 

Opinion of Sotomayor, J. 

IV 

Maintaining true threats doctrine within its traditional 

boundaries will guard against the overcriminalization of a 

wide range of political, artistic, and everyday speech based 

on its content alone. This does not mean that unintentionally threatening communications are exempt from regulation, far from it. As explained above, there are far fewer 

First Amendment concerns with stalking laws that punish 

repeated, targeted, unwanted conduct and accompanying 

speech. For that reason, recklessness is quite suffcient. 

As to true threats, intent is neither an unusual nor an insurmountable bar. “[C]ourts and juries every day pass upon 

knowledge, belief and intent . . . having before them no more 

than evidence of . . . words and conduct, from which, in ordinary human experience, mental condition can be inferred.” 

American Communications Assn. v. Douds, 339 U. S. 382, 

411 (1950). 

* * * 

I agree with the Court's conclusion that the First Amendment requires a subjective mens rea in true-threats cases, 

and I also agree that recklessness is amply 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 intentional threats. Especially in a climate of intense polarization, it is dangerous to allow criminal prosecutions for 

heated words based solely on an amorphous recklessness 

standard. Our society has often concluded that an intent 

standard sets a proper balance between safety and the need 

for a guilty mind, even in cases that do not involve the First 

Amendment. Surely when the power of the State is called 

intent to threaten was required. See 2 R. Anderson, Wharton's Criminal 

Law and Procedure § 803, pp. 659–660 (1957). 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 105 

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 respectfully concur only in part and in the judgment. 

Justice Thomas, dissenting. 

I join Justice Barrett's dissent in full. I write separately to address the majority's surprising and misplaced reliance on New York Times Co. v. Sullivan, 376 U. S. 254 

(1964). In New York Times, this Court held that the First 

Amendment bars public 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 constitutional law.” McKee v. Cosby, 586 U. S. –––, ––– (2019) 

(Thomas, J., concurring in denial of certiorari). Instead of 

simply applying the First Amendment as it was understood 

at the time of the Founding, “the Court fashioned its own 

` “federal rule[s]” ' by balancing the `competing values at 

stake in defamation suits.' ” Ibid. (quoting Gertz v. Robert 

Welch, Inc., 418 U. S. 323, 334, 348 (1974)); see also Bose 

Corp. v. Consumers Union of United States, Inc., 466 U. S. 

485, 501–502 (1984) (acknowledging that “the rule enunciated 

in the New York Times case” is “largely a judge-made rule 

of law,” the “content” of which is “given meaning through 

the evolutionary process of common-law adjudication”). 

“The constitutional libel rules adopted by this Court in New 

York Times and its progeny broke sharply from the common 

law of libel, and there are sound reasons to question whether 

the First and Fourteenth Amendments displaced this body 

of common law.” McKee, 586 U. S., at ––– (opinion of 

Thomas, J.). Thus, as I have previously noted, “[w]e should 

Page Proof Pending Publication
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 numerous extensions. See, e. g., Berisha, 594 U. S., at ––– – ––– 

(Gorsuch, J., dissenting from denial of certiorari); Coughlin 

v. Westinghouse Broadcasting & Cable, Inc., 476 U. S. 1187 

(1986) (Burger, C. J., joined by Rehnquist, J., dissenting from 

denial of certiorari); Gertz, 418 U. S., at 370 (White, J., dissenting); Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 62 

(1971) (Harlan, J., dissenting); id., at 78 (Marshall, J., dissenting); Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., 

concurring); see also E. Kagan, A Libel Story: Sullivan Then 

and Now, 18 L. & Soc. Inquiry 197, 207 (1993); J. Lewis & 

B. Ottley, New York Times v. Sullivan at 50, 64 DePaul L. 

Rev. 1, 35–36 (2014) (collecting statements from Justice 

Scalia); cf. Tah v. Global Witness Publishing, Inc., 991 F. 3d 

231, 251–256 (CADC 2021) (Silberman, J., dissenting in part) 

(questioning the doctrine). It is thus unfortunate that the 

majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its fawed, policydriven 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 requires that the speaker understand the meaning of his 

words. Ante, at 72, n. 1. The question is what more the 

First Amendment requires. Colorado maintains that an objective standard is enough—that is, the government must 

show that a reasonable person would regard the statement 

as a threat of violence. Counterman, however, argues that 

the First Amendment requires a subjective test—that is, the 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 107 

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 unjustifably grants true threats preferential treatment, I respectfully dissent. 

I 

Since the founding, the First Amendment has allowed the 

government to regulate certain “areas of speech” “because 

of their constitutionally proscribable content.” R. A. V. v. 

St. Paul, 505 U. S. 377, 382–383 (1992) (emphasis deleted). 

This includes true threats, which are “serious expression[s] 

of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 

538 U. S. 343, 359 (2003); see also R. A. V., 505 U. S., at 388 

(“[T]hreats of violence are outside the First Amendment”). 

True threats carry little value and impose great cost. See 

Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942) 

(“[A]ny beneft that may be derived from [true threats] is 

clearly outweighed by the social interest in order and morality”). “[B]y their very utterance,” true threats “infict injury.” Ibid. They provoke “the fear of violence,” create 

“disruption,” give rise to “the possibility that the threatened 

violence will occur”—and the list goes on. Black, 538 U. S., 

at 360 (internal quotation marks omitted).1 

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 impact on quality of life as well as risks to security and safety of the victim 

and persons close to the victim.” Colo. Rev. Stat. §§ 18–3–601(1)(f), 18– 

Page Proof Pending Publication
108 COUNTERMAN v. COLORADO 

Barrett, J., dissenting 

The nature of a true threat points to an objective test for 

determining the scope of First Amendment protection: Neither its “social value” nor its potential for “injury” depends 

on the speaker's subjective intent. Chaplinsky, 315 U. S., at 

572. They can relate, of course—a speaker who does not 

intend to threaten is less likely to utter a statement that 

could be taken that way. But the Constitution ultimately 

declines to protect true threats for objective reasons, not 

subjective ones. So an objective test “complements the 

explanation for excluding threats of violence from First 

Amendment protection in the 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. Nonetheless, the Court holds Colorado's statute unconstitutional. 

Why? Because the Court installs a prophylactic buffer zone 

to avoid chilling protected speech—a buffer zone that protects true threats unless the speaker “consciously disregarded a substantial risk that his communications would be 

viewed as threatening violence.” Ante, at 69, 72–73. That 

reasoning is 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 “escalate 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., dissenting 

held that nearly every category of unprotected speech may 

be regulated using an objective test. In concluding otherwise, the Court neglects certain cases and misreads others. 

Start with fghting words—a category of unprotected 

speech that the Court skips past. Fighting words are “personally abusive epithets” that are “inherently likely to provoke violent reaction.” Cohen v. California, 403 U. S. 15, 

20 (1971). Under our precedent, legislatures may regulate 

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 “fghting words” according to a reasonable-person standard); Cantwell v. Connecticut, 310 U. S. 296, 309–310 (1940) (statements 

unprotected when they are “likely to provoke violence and 

disturbance of good order, even though no such eventuality 

be intended”). Instead, we ask only whether “the ordinary 

citizen,” using her “common knowledge,” would reasonably 

understand the statement as a “direct personal insult.” 

Cohen, 403 U. S., at 20; see also Texas v. Johnson, 491 U. S. 

397, 409 (1989). 

The Court similarly overlooks the category of “false, deceptive, or misleading” commercial speech. Zauderer v. Offce of Disciplinary Counsel of Supreme Court of Ohio, 471 

U. S. 626, 638 (1985); In re R. M. J., 455 U. S. 191, 203 (1982) 

(“Truthful advertising . . . is entitled to the protections of 

the First Amendment,” but “[m]isleading advertising may be 

prohibited entirely”); Ibanez v. Florida Dept. of Business 

and Professional Regulation, Bd. of Accountancy, 512 U. S. 

136, 142 (1994) (“[F]alse, deceptive, or misleading commercial 

speech may be banned”). Here, too, our cases suggest that 

First Amendment protection depends on objective falsity 

rather than the speaker's intention. See In re R. M. J., 455 

U. S., at 202 (“[R]egulation—and imposition of discipline— 

are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a 

Page Proof Pending Publication
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 dissemination of commercial speech that is false, deceptive, or 

misleading,” without regard to whether the speaker knew 

that the recipient would be deceived or misled. Zauderer, 

471 U. S., at 638. 

Or take obscenity, which we have long held is “not protected by the freedoms of speech and press.” Roth v. 

United States, 354 U. S. 476, 481 (1957). Speech 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 “depicts 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 different standard for obscenity laws, asserting that “the First 

Amendment demands proof of a defendant's mindset to make 

out an obscenity case.” Ante, at 76. By “mindset,” the 

Court apparently means that the defendant must have some 

awareness that an average person would consider the materials obscene. But the Court draws this conclusion from 

cases rejecting a strict liability standard—for example, we 

have held that the proprietor of a bookstore cannot be liable 

for possessing an obscene book unless he knew what was in 

it. Smith v. California, 361 U. S. 147, 149, 155 (1959); MishPage Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 111 

Barrett, J., dissenting 

kin v. New York, 383 U. S. 502, 510–512 (1966); see also Ginsberg v. New York, 390 U. S. 629, 643–644 (1968).2 Knowing 

what the material depicts is not the same as knowing how 

the average person would react to it—just as there is an 

important difference between Counterman's knowledge of 

what his words meant and his knowledge of how they would 

be perceived. Though the Court confates the two, our obscenity cases have repeatedly refused to require the latter 

as a matter of constitutional law. Hamling, 418 U. S., at 

120–123; Rosen v. United States, 161 U. S. 29, 41–42 (1896). 

So obscenity doctrine does not help Counterman. 

The Court leans hardest on defamation law, but its argument depends on a single, cherry-picked strand of the doctrine. Yes, New York Times Co. v. Sullivan requires public 

fgures and public offcials to show “actual malice” on a defamation claim, and we have defned “actual malice” as “knowledge that [the statement] was false” or “reckless disregard 

of whether it was false or not.” 376 U. S. 254, 279–280 

(1964). But that is not the full story. A private person 

need only satisfy an objective standard to recover actual 

damages for defamation. Gertz v. Robert Welch, Inc., 418 

U. S. 323, 347–350 (1974). And if the defamatory speech 

does not involve a matter of public concern, she may recover 

punitive damages with the same showing. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 760– 

761 (1985) (plurality opinion). We have justifed that distinction on the ground that public-fgure defamation claims 

may deter “would-be critics of offcial conduct . . . from voic2 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 conviction under a federal obscenity statute, it does so only in dicta. 575 U. S. 

723, 739–740 (2015). Elonis does not alter the doctrinal framework for 

assessing the constitutionality of obscenity laws: That case involves true 

threats, not obscenity, and it interprets a federal statute, not the 

Constitution. 

Page Proof Pending Publication
Page Proof Pending Publication

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 signifcantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements.” Gertz, 418 U. S., at 344. So, despite 

what the Court says, Sullivan does not stand for the broad 

proposition that the First Amendment “demand[s] a subjective mental-state requirement.” Ante, at 75. Instead, it 

simply raises the bar for borderline unprotected speech with 

high social value (because of its proximity to public discourse) and low potential for injury (because public 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 protecting 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 presumably value their lives more than their reputations. See 

Gertz, 418 U. S., at 347–350. The Court has therefore extended Sullivan in a way that makes no sense on Sullivan's 

own terms. 

I will give the Court this much: Speakers must 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, however, our precedent itself explains the difference. Incitement, 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 Russia' ”). A specifc intent requirement helps draw the line between incitement and “political rhetoric lying at the core of 

the First Amendment.” NAACP v. Claiborne Hardware 

Co., 458 U. S. 886, 926–927 (1982). The Court does not contend that targeted threats and political commentary share a 

similarly close relationship. 

In sum, our First Amendment precedent does not set a 

“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 objective test works in practice. Two key features of true 

threats already guard against the risk of silencing protected 

speech. Thus, there is no need to go further and adopt the 

Court's heightened standard. 

First, only a very narrow class of statements satisfes the 

defnition of a true threat. To make a true threat, the speaker 

must express “an intent to commit an act of unlawful violence.” Black, 538 U. S., at 359 (emphasis added). Speech 

that is merely “offensive,” “ `poorly chosen,' ” or “unpopular” 

does not qualify. Brief for Petitioner 31, 36, 42. The statement must also threaten violence “to a particular individual or 

group of individuals”—not just in general. Black, 538 U. S., 

at 359. These tight guardrails distinguish true threats from 

public-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 

Page Proof Pending Publication
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 audience, the medium for the communication, and the broader 

exchange in which the statement occurs.3 Each consideration helps weed out protected speech from true threats. 

Our decision in Black illustrates the point. There, the 

Court considered a Virginia law that prohibited cross burning “ `with the intent of intimidating any person or group of 

persons.' ” 538 U. S., at 348. Notably, the statute included 

a presumption: “ `Any such burning of a cross shall be prima 

facie evidence of an intent to intimidate.' ” Ibid. After 

three men were convicted under the statute, they challenged 

it as facially unconstitutional. We upheld the general prohibition on cross burning, concluding that the First Amendment allows the government to ban “a particular type of 

threat.” Id., at 362–363. A plurality then went on to address the statutory presumption. While cross burning “may 

mean that a person is engaging in constitutionally proscribable intimidation,” the plurality reasoned, the act is not monolithic. Id., at 365. Cross burning could be directed “at 

an individual” or “at a group of like-minded believers”; it 

could be done “on a neighbor's lawn” or “at a public rally”; 

it could be done with the property owner's “permission” or 

without it. Id., at 366. The presumption “blur[red] the 

line” between these different situations and “ignore[d] all of 

the contextual factors that are necessary to decide whether 

3 Colorado's test provides a good example. Juries must apply the following nonexhaustive factors to determine whether a statement is a true 

threat: “(1) the statement's role in a broader exchange, if any, including 

surrounding events; (2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; (3) the manner in which the statement was conveyed (e. g., 

anonymously or not, privately or publicly); (4) the relationship between the 

speaker and recipient(s); and (5) the subjective reaction of the statement's 

intended or foreseeable recipient(s).” People in the Interest of R. D., 464 

P. 3d 717, 721–722 (Colo. 2020). 

Page Proof Pending Publication
Page Proof Pending Publication

Cite as: 600 U. S. 66 (2023) 115 

Barrett, J., dissenting 

a particular cross burning” was covered by the statute or 

not.4 Id., at 365, 367. Thus, the presumption was unconstitutionally overbroad. 

The Black plurality's reasoning can be boiled down to the 

following insight: When context is ignored, true threats cannot be reliably distinguished from protected speech. The 

reverse also holds: When context is properly considered, constitutional concerns abate. See, e. g., Watts v. United States, 

394 U. S. 705, 708 (1969) (per curiam) (concluding that a 

statement was “political hyperbole” instead of a true threat 

based on “context,” “the expressly conditional nature of the 

statement,” and the “reaction of the listeners”). 

One more point: Many States have long had statutes like 

Colorado's on the books. See Brief for Illinois et al. as 

Amici Curiae 16–17. Before we took this case, the vast majority of Courts of Appeals and state high courts had upheld 

these statutes as constitutional. So objective tests are effectively the status quo today, yet Counterman still struggles to identify past prosecutions that came close to infringing on protected speech. Tr. of Oral Arg. 28–30. The 

silence is telling. 

C 

So is the silence in the historical record. Since 1791, true 

threats have been excluded from the “speech” protected by 

the First Amendment. R. A. V., 505 U. S., at 382–383, 388. 

If Counterman could show that a subjective requirement has 

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 requirements—the Virginia statute covered only threats made “ `with the 

intent of intimidating any person or group of persons.' ” Id., at 348. At 

no point did the Court hold that the First Amendment demands 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 Counterman cannot make that showing. 

For starters, he produces no evidence directly addressing 

the meaning of the First Amendment—nothing from state 

ratifying conventions, political commentary, or even early debates about efforts to regulate threats in ways that might 

threaten speech. That is not surprising at the federal level, 

because the Federal Government did not prohibit threats 

until the early 20th century. Elonis, 575 U. S., at 760 

(Thomas, J., dissenting). Some States, however, both regulated threats and guaranteed the right to free speech in their 

own constitutions. Id., at 760–761. Yet even at the state 

level, there was apparently no discussion about the implications of these statutes for the constitutional right. 

That void notwithstanding, the state threat statutes are 

the evidence on which Counterman seizes. He argues that 

they imposed a subjective mens rea, demonstrating that the 

founding generation thought that threats could be punished 

on no less. But as Justice Thomas has already discussed 

in detail, this is incorrect. See id., at 760–765. Rather than 

a subjective mens rea, these statutes used an objective 

standard resembling Colorado's. 

Even if they did require a heightened mens rea, though, 

these statutes would not carry the day for Counterman. 

The enactment of a statute against the backdrop of a free 

speech guarantee tends to show that the legislature thought 

the statute consistent with that guarantee. Thus, if the 

question were whether such statutes violated the First 

Amendment, their existence would be evidence to the contrary. But the question here is whether a subjective intent 

requirement is the constitutional 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. 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 117 

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 asking the Court to enforce a historically sanctioned rule, but 

rather to fashion a new one. 

D 

Even if a subjective test had a historical pedigree, the 

Court's chosen standard of recklessness certainly does not. 

Where does recklessness come from? It was not raised by 

the parties. Only the Solicitor General noted this possibility—and briefy at that. Brief for United States as Amicus 

Curiae 28–31. Nor did the courts below address recklessness; indeed, very few courts (of the many that have taken 

up the question) have settled on recklessness as the constitutional 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 recklessness as “the right path forward.” Ante, at 79. Its rationale is, at best, unclear. 

The Court begins by acknowledging the “ `competing value[s]' ” of “free expression” on one hand, and “profound 

harms . . . to both individuals and society” on the other. 

Ante, at 79–80. But why do these considerations point to 

recklessness? A knowledge or purpose standard would 

allow more free expression, so maybe we should go higher. 

See ante, at 97 (Sotomayor, J., concurring in part and concurring in judgment) (“chilling concerns only further buttress the conclusion that true threats should be limited 

to intentionally threatening speech”). An objective standard would cause less harm to victims, so perhaps lower is 

better. The optimal balance strikes me as a question best 

left to the legislature, which could calibrate the mens rea 

to the circumstance—for example, higher for the criminal 

context and lower for the civil. See Brief for Illinois 

et al. as Amici Curiae 28–30 (States “have a range of polPage 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 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 obscenity 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: Recklessness 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 “ `conventional requirement for criminal conduct' ” is “ `awareness 

of some wrongdoing.' ” Elonis, 575 U. S., at 737–738. In 

keeping with this convention, we generally presume that 

“federal criminal statutes that are silent on the required 

mental state” nonetheless impose the “mens rea which is 

necessary to separate wrongful conduct from otherwise innocent conduct.” Id., at 736 (internal quotation marks omitted). That is why we rejected an objective standard for the 

federal threat prohibition, 18 U. S. C. § 875(c). 575 U. S., at 

737–739. It is “the threatening nature of the communication” that “makes the conduct `wrongful' ”; thus, the statute 

is best interpreted to require that the defendant be aware of 

the impact of his speech. Id., at 737. 

But this case is about the scope of the First Amendment, 

not the interpretation of a criminal statute. Accordingly, 

Page Proof Pending Publication
Cite as: 600 U. S. 66 (2023) 119 

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 geographic areas. Imagine someone who threatens to bomb an 

airport, State v. Johnston, 156 Wash. 2d 355, 358–359, 127 

P. 3d 707, 708–709 (2006), or “shoot up [a] courthous[e],” State 

v. Draskovich, 2017 S. D. 76, ¶3, 904 N. W. 2d 759, 761. The 

speaker might well end up barred from the location in question—for good reason. Yet after today, such orders cannot 

be obtained without proof—not necessarily easy to secure— 

that the person who issued the threat anticipated that it 

would elicit fear. See Tr. of Oral Arg. 92–93. 

The government can also opt to counteract true threats by 

means of civil enforcement actions. For instance, 18 U. S. C. 

§ 248 prohibits “threat[s] of force” against any person “obtaining or providing reproductive health services” or “seeking to exercise the First Amendment right of religious freedom at a place of religious worship.” The statute imposes 

a range of civil penalties, and it allows enforcement suits 

by both private persons and government 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. 

Page Proof Pending Publication
120 COUNTERMAN v. COLORADO 

Barrett, J., dissenting 

In addition, employers and school administrators often discipline individuals who make true threats. Consider the 

student who was expelled after “draft[ing] two violent, misogynic, and obscenity-laden rants expressing a desire to molest, rape, and murder” his ex-girlfriend. Doe v. Pulaski 

Cty. Special School Dist., 306 F. 3d 616, 619 (CA8 2002) 

(en banc). Or the one who was suspended after “ `talking 

about taking a gun to school' to `shoot everyone he hates.' ” 

D. J. M. v. Hannibal Public School Dist. No. 60, 647 F. 3d 754, 

758 (CA8 2011); Lovell v. Poway 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 constitutional protection, e. g., Mahanoy Area School Dist. v. 

B. L., 594 U. S. –––, ––– – ––– (2021), the Court's new rule 

applies to all of these situations. That can make all the 

difference in some cases. A delusional speaker may lack 

awareness of the threatening nature of her speech; a devious 

speaker may strategically disclaim such awareness; and a 

lucky speaker may leave behind no evidence of mental state 

for the government to use against her. The Court's decision 

thus sweeps much further than it lets on. 

* * * 

The bottom line is this: Counterman communicated true 

threats, which, “everyone agrees, lie outside the bounds 

of the First Amendment's protection.” Ante, at 72. He 

knew what the words meant. Those threats caused the victim to fear for her life, and they “upended her daily existPage 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 respectfully 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