Page:Counterman v. Colorado.pdf/8

Rh statements’ threatening character. The second issue here concerns what precise mens rea standard suffices for the First Amendment purpose at issue. Again guided by our precedent, we hold that a recklessness standard is enough. Given that a subjective standard here shields speech not independently entitled to protection—and indeed posing real dangers—we do not require that the State prove the defendant had any more specific intent to threaten the victim.

“From 1791 to the present,” the First Amendment has “permitted restrictions upon the content of speech in a few limited areas.” United States v. Stevens, 559 U. S. 460, 468 (2010). These “historic and traditional categories” are “long familiar to the bar” and perhaps, too, the general public. Ibid. One is incitement—statements “directed [at] producing imminent lawless action,” and likely to do so. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam). Another is defamation—false statements of fact harming another’s reputation. See Gertz v. Robert Welch, Inc., 418 U. S. 323, 340, 342 (1974). Still a third is obscenity—valueless material “appeal[ing] to the prurient interest” and describing “sexual conduct” in “a patently offensive way.” Miller v. California, 413 U. S. 15, 24 (1973). This Court has “often described [those] historically unprotected categories of speech as being of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest” in their proscription. Stevens, 559 U. S., at 470 (internal quotation marks omitted; emphasis deleted).

“True threats” of violence is another historically unprotected category of communications. Virginia v. Black, 538 U. S. 343, 359 (2003); see United States v. Alvarez, 567 U. S. 709, 717–718 (2012) (plurality opinion). The “true” in that term distinguishes what is at issue from jests, “hyperbole,”