Page:Counterman v. Colorado.pdf/12

Rh Given “the ambiguities inherent in the definition of obscenity,” the First Amendment “requires proof of scienter to avoid the hazard of self-censorship.” Mishkin, 383 U. S., at 511. 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). (opinion of ) (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—fighting words and false commercial speech—to support an objective test also falls flat. See (opinion of ). This Court has not upheld a conviction under the fighting-words doctrine in 80 years. At the least, that doctrine is today a poor candidate for spinning off other First Amendment rules. False commercial speech is also a poor analog, though for different reasons. Put aside that the line of cases the dissent invokes has never been listed among the historically unprotected categories of speech. See, e.g., United States v. Stevens, 559 U. S. 460, 468 (2010); see. 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.

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 “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