Page:Counterman v. Colorado.pdf/33

16 concerns about chilling support a subjective mens rea requirement for true threats. Yet these same chilling concerns only further buttress the conclusion that true threats should be limited to intentionally threatening speech. Indeed, in the concurrence by Justice Marshall that the Court invokes,, he advocated “requir[ing] proof that the speaker intended his statement to be taken as a threat,” based on concerns about punishing “pure speech.” Rogers, 422 U. S., at 47–48. In determining the appropriate mens rea, the Court analogizes to three categories of traditionally unprotected speech: incitement, obscenity, and defamation. None of these warrants expanding the narrow boundaries of true threats.

Speech inciting harm is the closest cousin to speech threatening harm. Both incitement and threats put other people at risk, and both “sprin[g] from [Justice] Holmes’s ‘clear and present danger’ test.” G. Blakey & B. Murray, Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law, 2002 B. Y. U. L. Rev. 829, 1069 (2002). Like true threats, incitement’s scope is defined in terms of both intention and effect, covering speech “[1] intended to produce, and [2] likely to produce, imminent disorder.” Hess v. Indiana, 414 U. S. 105, 109 (1973) (per curiam).

Despite their similar nature and source, the Court today draws a hard line between the two. Incitement requires “ ‘inten[t].’ ” While for threats, the speaker need only be “aware that others could regard his statements as threatening violence and delive[r] them anyway.”  (internal quotation marks omitted). The Court justifies this asymmetry by the idea “that incitement to disorder is commonly a hair’s-breadth away from political ‘advocacy,’ ”, and the lead dissent says much the same, (opinion of ). These opinions offer little basis for distinguishing threats on this ground, as this Court’s