Page:Counterman v. Colorado.pdf/2

2 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 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 figure 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. 5–10. (b) In this context, a recklessness standard—i.e., a showing that a person “consciously disregard[ed] a substantial [and unjustifiable] 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 fits 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