Page:Counterman v. Colorado.pdf/22

Rh First Amendment concerns at issue. In such cases, recklessness is amply sufficient. 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.

Lest there be any doubt, the First Amendment stakes around the definition 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.” Mahanoy Area School Dist. v. B. L., 594 U. S. ___, ___ (2021) (slip op., at 11). Yet “[m]ost of what we say to one another lacks ‘religious, political, scientific, 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 computer-generated 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 internetInternet [sic]. 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,