Page:Counterman v. Colorado.pdf/55

Rh of unprotected speech, public-figure defamation is the best analog for true threats. The reality is that recklessness is not grounded in law, but in a Goldilocks judgment: Recklessness is not too much, not too little, but instead “just right.”

Some may find Colorado’s statute harsh, and the Court’s decision seems driven in no small part by the heavy hammer of criminal punishment. See ;, (opinion of ). While an objective test is “a familiar feature of civil liability in tort law,” the “ ‘conventional requirement for criminal conduct’ ” is “ ‘awareness of some wrongdoing.’ ” Elonis, 575 U. S., at 737–738. In keeping with this convention, we generally presume that “federal criminal statutes that are silent on the required mental state” nonetheless impose the “mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” Id., at 736 (internal quotation marks omitted). That is why we rejected an objective standard for the federal threat prohibition, 18 U. S. C. §875(c). 575 U. S., at 737–739. It is “the threatening nature of the communication” that “makes the conduct ‘wrongful’ ”; thus, the statute is best interpreted to require that the defendant be aware of the impact of his speech. Id., at 737.

But this case is about the scope of the First Amendment, not the interpretation of a criminal statute. Accordingly, the Court’s holding affects the civil consequences for true threats just as much as it restricts criminal liability. And the civil context underscores the danger of adopting a Sullivan-style buffer zone for true threats.

Consider, for example, threat victims who seek restraining orders to protect themselves from their harassers. See, e.g., United States v. Elonis, 841 F. 3d 589, 593 (CA3 2016) (defendant’s wife sought a restraining order after he wrote on Facebook, “I’m not going to rest until your body is a mess,