Page:Counterman v. Colorado.pdf/54

12 Where does recklessness come from? It was not raised by the parties. Only the Solicitor General noted this possibility—and briefly at that. Brief for United States as Amicus Curiae 28–31. Nor did the courts below address recklessness; indeed, very few courts (of the many that have taken up the question) have settled on recklessness as the constitutional floor for true threats. See, e.g., State v. Mrozinski, 971 N. W. 2d 233, 243–245 (Minn. 2022); In re J. J. M., 265 A. 3d 246, 269–270 (Pa. 2021). Still, the Court adopts recklessness as “the right path forward.” Its rationale is, at best, unclear.

The Court begins by acknowledging the “ ‘competing value[s]’ ” of “free expression” on one hand, and “profound harms … to both individuals and society” on the other. But why do these considerations point to recklessness? A knowledge or purpose standard would allow more free expression, so maybe we should go higher. See (, concurring in part and concurring in judgment) (“chilling concerns only further buttress the conclusion that true threats should be limited to intentionally threatening speech”). An objective standard would cause less harm to victims, so perhaps lower is better. The optimal balance strikes me as a question best left to the legislature, which could calibrate the mens rea to the circumstance—for example, higher for the criminal context and lower for the civil. See Brief for Illinois et al. as Amici Curiae 28–30 (States “have a range of policy reasons for using subjective standards for penalizing threats of violence” and many “choose to require proof of a speaker’s subjective mental state” in some situations but not others).

Nor does our First Amendment precedent buttress the Court’s preferred standard. A recklessness requirement currently applies only to public-figure defamation claims. Incitement to violence calls for more. Fighting words, private-figure defamation, false commercial speech, and obscenity require less. I fail to see why, of all these categories