Page:Counterman v. Colorado.pdf/32

Rh to intimidate’ … and nonintimidating cross burning [that] cannot be prohibited.” 538 U. S., at 372 (opinion of Scalia, J.). Given the violent history of the symbol, it is hard to imagine that any politically motivated cross burning done within view of the public could be carried out without awareness of some risk a reasonable spectator would feel threatened. See id., at 388–391 (, dissenting). Recklessness, which turns so heavily on an objective person standard, would not have been enough.

As to the history, it is true that over time courts have often used a wide variety of terms to describe mental states. See, e.g., Morissette v. United States, 342 U. S. 246, 252 (1952). Yet “[t]he element of intent in the criminal law has traditionally been viewed as a bifurcated concept embracing either the specific requirement of purpose or the more general one of knowledge or awareness.” United States v. United States Gypsum Co., 438 U. S. 422, 445 (1978); see also Tison, 481 U. S., at 150; Carter v. United States, 530 U. S. 255, 270 (2000) (describing “feloniously” as equivalent to “ ‘intent’ ”). And at the very least, there is no well-settled history showing that it is enough for a defendant to be merely aware of some risk that their statements could be threatening. See, e.g., Borden v. United States, 593 U. S. ___, ___ (2021) (plurality opinion) (slip op., at 5) (recklessness requires awareness of a level of risk that “need not come anywhere close to a likelihood”). The history is, instead, replete with the enduring and commonsense pairing of threats and intent.

The Court, eschewing Black and history, instead reaches its result based on the need for a “buffer zone” drawn by analogy to other categories of unprotected speech. For the reasons above, I do not think we can leap ahead to this question. With that caveat, I agree with the Court that precedent in other areas of unprotected speech and