Page:Counterman v. Colorado.pdf/52

10 Id., at 365, 367. Thus, the presumption was unconstitutionally overbroad.

The Black plurality’s reasoning can be boiled down to the following insight: When context is ignored, true threats cannot be reliably distinguished from protected speech. The reverse also holds: When context is properly considered, constitutional concerns abate. See, e.g., Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (concluding that a statement was “political hyperbole” instead of a true threat based on “context,” “the expressly conditional nature of the statement,” and the “reaction of the listeners”).

One more point: Many States have long had statutes like Colorado’s on the books. See Brief for Illinois et al. as Amici Curiae 16–17. Before we took this case, the vast majority of Courts of Appeals and state high courts had upheld these statutes as constitutional. So objective tests are effectively the status quo today, yet Counterman still struggles to identify past prosecutions that came close to infringing on protected speech. Tr. of Oral Arg. 28–30. The silence is telling.

So is the silence in the historical record. Since 1791, true threats have been excluded from the “speech” protected by the First Amendment. R. A. V., 505 U. S., at 382–383, 388. If Counterman could show that a subjective requirement has been inherent in the definition of “true threat” since the founding, he would have a compelling case. But Counterman cannot make that showing.

For starters, he produces no evidence directly addressing the meaning of the First Amendment—nothing from state ratifying conventions, political commentary, or even early debates about efforts to regulate threats in ways that might