Page:Counterman v. Colorado.pdf/16

Rh It is true that our incitement decisions demand more—but the reason for that demand is not present here. When incitement is at issue, we have spoken in terms of specific intent, presumably equivalent to purpose or knowledge. See Hess, 414 U. S., at 109;. In doing so, we recognized that incitement to disorder is commonly a hair’s-breadth away from political “advocacy”—and particularly from strong protests against the government and prevailing social order. Brandenburg, 395 U. S., at 447. Such protests gave rise to all the cases in which the Court demanded a showing of intent. See ibid.; Hess, 414 U. S., at 106; Claiborne Hardware Co., 458 U. S., at 888, 928. And the Court decided those cases against a resonant historical backdrop: the Court’s failure, in an earlier era, to protect mere advocacy of force or lawbreaking from legal sanction. See, e.g., Whitney v. California, 274 U. S. 357 (1927); Gitlow v. New York, 268 U. S. 652 (1925); Abrams v. United States, 250 U. S. 616 (1919). A strong intent requirement was, and remains, one way to guarantee history was not repeated. It was a way to ensure that efforts to prosecute incitement would not bleed over, either directly or through a chilling effect, to dissenting political speech at the First 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 distinguishable; it is more that they compel the use of a distinct standard here.