Page:Counterman v. Colorado.pdf/26

Rh or “defamation” at will, this would achieve the same results as creating new categories of unprotected speech.

Thus, the Court must first ask whether there is a longstanding tradition of punishing inadvertent threats as “true threats.” This Court’s prior definition of the word “threat” in a federal statute, looking primarily to dictionaries, Elonis, 575 U. S., at 733, does not tell us the scope of “true threats” for First Amendment purposes. Elonis itself made clear that it did “not … consider any First Amendment issues.” Id., at 740. Instead, a careful examination of this Court’s true-threats precedent and the history of threat crimes does not support a long-settled tradition of punishing inadvertently threatening speech.

A natural place to begin, one might think, would be with this Court’s most recent decision involving the First Amendment, mens rea, and true threats. Yet to read the Court’s decision, one would have little idea that in a seminal 2003 decision, this Court held that a threat conviction could not stand because of an insufficient mens rea requirement. See Black, 538 U. S. 343. Black plainly sets out a conception of true threats as including a mens rea requirement.

In Black, the Court confronted the constitutionality of a Virginia statute that prohibited burning a cross with intent to intimidate. Only part of the decision in Black is contained in a five-Justice majority opinion. The other relevant parts of the decision were written by the Members of that majority, who split into a four-Justice plurality and Justice Scalia’s partial concurrence in judgment.

The majority explained why a prohibition on cross burning with intent to threaten was constitutional, beginning by defining the category of true threats. “ ‘True threats,’ ” the majority explained “encompass those statements where the speaker means to communicate a serious expression of an