Page:Counterman v. Colorado.pdf/50

8 In sum, our First Amendment precedent does not set a “baseline ban on an objective standard.” Precedent does more than allow an objective test for true threats; on balance, it affirmatively supports one.

The Court’s analysis also gives short shrift to how an objective test works in practice. Two key features of true threats already guard against the risk of silencing protected speech. Thus, there is no need to go further and adopt the Court’s heightened standard.

First, only a very narrow class of statements satisfies the definition of a true threat. To make a true threat, the speaker must express “an intent to commit an act of unlawful violence.” Black, 538 U. S., at 359 (emphasis added). Speech that is merely “offensive,” “ ‘poorly chosen,’ ” or “unpopular” does not qualify. Brief for Petitioner 31, 36, 42. The statement must also threaten violence “to a particular individual or group of individuals”—not just in general. Black, 538 U. S., at 359. These tight guardrails distinguish true threats from public-figure defamation, the model for the Court’s rule. While defamatory statements can cover an infinite number of topics, true threats target one: unlawful violence.

Second, the statement must be deemed threatening by a reasonable listener who is familiar with the “entire factual context” in which the statement occurs. State v. Taveras, 342 Conn. 563, 572, 271 A. 3d 123, 129 (2022). This inquiry captures (among other things) the speaker’s tone, the audience, the medium for the communication, and the broader exchange in which the statement occurs. Each consideration helps weed out protected speech from true threats.