Page:Counterman v. Colorado.pdf/28

Rh and dissenting in part). There was a constitutional need for a distinction between cross burning “ ‘intended to intimidate’ ” and cross burning as “ ‘a statement of ideology.’ ” Ibid. The plurality and Justice Scalia only parted ways as to whether to hold that the statute was “facially invalid,” id., at 367 (plurality opinion), or just that the jury instructions made it unclear “whether the jury has rendered its verdict (as it must)” with sufficient consideration of “intent to intimidate,” id., at 380 (opinion of Scalia, J.) (emphasis added).

The through-line is not hard to discern. First, unprotected true threats include a subjective mens rea requirement. Id., at 360 (majority opinion). Second, as a result, “Virginia’s statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate.” Id., at 362 (majority opinion). Third, a conviction could not stand if it had categorically dispensed with that intent requirement, id., at 365–366 (plurality opinion), or if the jury had insufficiently considered “intent to intimidate,” id., at 380 (opinion of Scalia, J.).

In sum, all five Justices in the Black majority agreed that a true-threats prosecution could not stand under the First Amendment without a sufficient subjective mens rea requirement.