Page:Counterman v. Colorado.pdf/49

Rh with high social value (because of its proximity to public discourse) and low potential for injury (because public figures can engage in counterspeech).

Sullivan’s rationale does not justify a heightened mens rea for true threats. Because true threats are not typically proximate to debate on matters of public concern, the Court’s newly erected buffer zone does not serve the end of protecting heated political commentary. Nor can public figures use counterspeech in the public square to protect themselves from serious threats of physical violence. And perversely, private individuals now have less protection from true threats than from defamation—even though they presumably value their lives more than their reputations. See Gertz, 418 U. S., at 347–350. The Court has therefore extended Sullivan in a way that makes no sense on Sullivan’s own terms.

I will give the Court this much: Speakers must specifically intend to incite violence before they lose First Amendment protection. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (defining incitement as “advocacy … directed to inciting or producing imminent lawless action and likely to incite or produce such action”); see also Hess v. Indiana, 414 U. S. 105, 108–109 (1973) (per curiam). Once more, however, our precedent itself explains the difference. Incitement, as a form of “advocacy,” often arises in the political arena. See Brandenburg, 395 U. S., at 447 (Ku Klux Klan rally held to plan a “ ‘marc[h] on Congress’ ”); Hess, 414 U. S., at 106 (antiwar demonstration); Abrams v. United States, 250 U. S. 616, 620 (1919) (pamphlets about the President’s “ ‘shameful, cowardly silence about the intervention in Russia’ ”). A specific intent requirement helps draw the line between incitement and “political rhetoric lying at the core of the First Amendment.” NAACP v. Claiborne Hardware Co., 458 U. S. 886, 926–927 (1982). The Court does not contend that targeted threats and political commentary share a similarly close relationship.