Page:Counterman v. Colorado.pdf/18

Rh

, with whom 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-defined and narrowly limited” in light of the serious consequences that flow from carving out speech from ordinary First Amendment protections. Chaplinsky v. New Hampshire, 315 U. S. 568, 571 (1942).

“True threats” are one such category, and there is a 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.