Page:Counterman v. Colorado.pdf/29

12 In defining true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence,” id., at 359, the Court in Black echoed the traditional understanding of threats. Historically, threat crimes covered the same kind of subjectively threatening speech Black invoked.

In reviewing this history, it is also vital to keep in mind the nature of the inquiry. Removing speech from normal First Amendment scrutiny is a major shift in the balance of expression and public interest that our Constitution generally strikes. The inquiry is therefore whether there is a “long-settled tradition” of prohibiting inadvertently threatening speech. Stevens, 559 U. S., at 469. None of the other opinions, however, identify a historical case that expressly raised the question whether a subjective mens rea is required and held that it is not. That is a remarkable thing when one considers that the sample size consists of decisions from both sides of the Atlantic across centuries.

There was a long tradition of crimes for threatening another person in order to extort them. See, e.g., 1796 N. J. Laws §57, p. 108. Colorado and the United States admit that this core category of threat crimes required intent.

Even beyond that, a subjective mens rea remained a key component of threat offenses. An 18th-century English statute made it a capital offense to “knowingly send any letter … threatening to kill or murder any of his Majesty’s subject or subjects” or to threaten arson. 27 Geo. II, c. 15, in 21 Eng. Stat. at Large 184 (1754). A leading treatise explained that the statute was “levelled against such whose intention it was [to] obtain their object by creating terror in