Page:Counterman v. Colorado.pdf/57

Rh D. J. M. v. Hannibal Public School Dist. No. 60, 647 F. 3d 754, 758 (CA8 2011); Lovell v. Poway Unified School District, 90 F. 3d 367, 369, 372–373 (CA9 1996) (similar); Haughwout v. Tordenti, 332 Conn. 559, 561–562, 211 A. 3d 1, 3–4 (2019) (similar). True threats can also be expressed by a parent, a teacher, or an employee in another context altogether. See, e.g., Taveras, 342 Conn., at 567–569, 578, 271 A. 3d, at 126–128, 133 (parent); Smith v. New York City Dept. of Ed., 109 App. Div. 3d 701, 702–703, 972 N. Y. S. 2d 221, 222 (2013) (teacher); Diggs v. St. Louis, 613 S. W. 3d 858, 862, 864 (Mo. App. 2020) (correctional officer).

Barring some reason why the speech receives lesser constitutional protection, e.g., Mahanoy Area School Dist. v. B. L., 594 U. S. ___, ___–___ (2021) (slip op., at 4–5), the Court’s new rule applies to all of these situations. That can make all the difference in some cases. A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her. The Court’s decision thus sweeps much further than it lets on.

The bottom line is this: Counterman communicated true threats, which, “everyone agrees, lie outside the bounds of the First Amendment’s protection.” He knew what the words meant. Those threats caused the victim to fear for her life, and they “upended her daily existence.” Nonetheless, the Court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result. I respectfully dissent.