Page:Counterman v. Colorado.pdf/31

14 Court, for example, singled out threats as quintessential examples of offenses where it is “necessary” to prove the “intent of the particular letter.” State v. Murphy, 84 N. C. 742, 743–744 (1881). And where state statutes may have been silent on intent to threaten, courts read such requirements in. See Commonwealth v. Morton, 140 Ky. 628, 631, 131 S. W. 506, 507–508 (1910) (letter must be “calculated to alarm, disturb, intimidate, or injure”); see also State v. Stewart, 90 Mo. 507, 512, 2 S. W. 790, 792 (1887) (jury instruction requiring that “ ‘defendant intended to threaten’ ”).

Leading treatises also explained the importance of mens rea. See 25 American and English Encyclopaedia of Law 1071 (C. Williams ed. 1894) (when there is a question as to “whether or not the letter contains the threat alleged, the intent is a question for the jury”); see also 2 R. Anderson, Wharton’s Criminal Law and Procedure §803, pp. 659–660 (1957) (threats must be “intended to put the person threatened in fear of bodily harm”); 2 J. Bishop, Commentaries on the Criminal Law §1201, p. 664 (6th ed. 1877) (“The intent, both under the unwritten law and under the statutes, must be evil”).

Against that backdrop, I return to the inquiry at hand: whether there is a “long-settled” or “well-established” history of prosecuting inadvertently threatening speech. There is no line of cases or pattern of statutes affirmatively stating that an objective standard is sufficient.

Put together, Black and the history point to an intent requirement. When Black defined and analyzed true threats in terms of intent, there is no reason to think the Court used intent to mean anything less than its traditional definition of purpose or knowledge. See, e.g., Tison, 481 U. S., at 150. Nor would a recklessness standard play the necessary role of distinguishing between cross burning that is “ ‘intended