Page:Counterman v. Colorado.pdf/25

8 would not, however, present an uncommon or insurmountable barrier to true-threats prosecutions. Nonetheless, under such a standard, there will be some speech that some find threatening that will not and should not land anyone in prison.

These high First Amendment stakes are further reason for caution when delineating the boundaries of what constitutes a true threat. In undertaking that analysis, the Court and I part ways on the order of operations. The Court begins by defining true threats as all objectively threatening speech, entirely independent of whether the speaker intended to be threatening,, and the lead dissent agrees, (opinion of ). The Court gets there by relying on this Court’s interpretation of the word “threat” in a federal statute. Ante, at 6 (citing Elonis v. United States, 575 U. S. 723, 733 (2015)). The Court declares all such speech categorically unprotected, and then asks what “buffer zone” is needed in order to protect other, unthreatening speech. See.

Respectfully, I see the analysis differently. The first step in the analysis should instead be to ask about the scope of the well-defined and narrow category of “true threats” as a constitutional matter. This Court has already warned about the danger of creating new categories of “unprotected speech” exempt from the ordinary First Amendment framework for balancing our society’s commitment to free expression with other interests. Stevens, 559 U. S., at 470. If courts were at liberty to redefine what counts as a “threat”