The Supreme Court majority continued in relevant part: The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness. The First Amendment permits restrictions upon the content of speech in a few limited areas. Among these historic and traditional categories of unprotected expression is true threats. True threats are “serious expressions” conveying that a speaker means to “commit an act of unlawful violence.” Virginia v. Black, 538 U. S. 343, 359.
The existence of a threat depends not on “the mental state of the author,” but on “what the statement conveys” to the person on the receiving end. Elonis v. United States, 575 U. S. 723, 733. Yet the First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability. That is because bans on speech have the potential to chill, or deter, speech outside their boundaries. An important tool to prevent that outcome is to condition liability on the State’s showing of a culpable mental state. Speiser v. Randall, 357 U. S. 513, 526. That kind of “strategic protection” features in this Court’s precedent concerning the most prominent categories of unprotected speech. Gertz v. Robert Welch, Inc., 418 U. S. 323, 342.
With regard to defamation, a public figure cannot recover for the injury such a statement causes unless the speaker acted with “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U. S. 254, 280. The same idea arises in the law respecting obscenity and incitement to unlawful conduct. See, e.g., Hess v. Indiana, 414 U. S. 105, 109; Hamling v. United States, 418 U. S. 87, 122–123. And that same reasoning counsels in favor of requiring a subjective element in a true-threats case.
There are very few criminal offenses that do not require a criminal mind state. They are termed “strict liability” offenses. An example is statutory rape. In a statutory rape case, an actor commits a criminal offense even is he or she had every reason to believe that a juvenile with whom they had sexual relations was an adult. When First Amendment Rights are at issue, our courts usually require more proof of a criminal mind state as opposed to an absence of proof.
