The United States Supreme Court concluded with the following in relevant part: A speaker’s fear of mistaking whether a statement is a threat, fear of the legal system getting that judgment wrong, and fear of incurring legal costs all may lead a speaker to swallow words that are in fact not true threats. Insistence on a subjective element in unprotected-speech cases, no doubt, has a cost: Even as it lessens chill of protected speech, it makes prosecution of otherwise proscribable, and often dangerous, communications harder. But a subjective standard is still required for true threats, lest prosecutions chill too much protected, non-threatening expression.
In this context, a recklessness standard—i.e., a showing that a person “consciously disregarded a substantial and unjustifiable risk that his conduct will cause harm to another,” Voisine v. United States, 579 U. S. 686, 691—is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats—with diminished returns for protected expression. Using a recklessness standard also fits with this Court’s defamation decisions, which adopted a recklessness rule more than a half-century ago. The Court sees no reason to offer greater insulation to threats than to defamation. While this Court’s incitement decisions demand more, the reason for that demand—the need to protect from legal sanction the political advocacy a hair’s-breadth away from incitement—is not present here. For true threats, recklessness strikes the right balance, offering “enough ‘breathing space’ for protected speech,” without sacrificing too many of the benefits of enforcing laws against true threats. Elonis, 575 U. S., at 748.
The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman’s part of his statements’ threatening character. That is a violation of the First Amendment. Counterman’s conviction is vacated and remanded.
Recklessness and criminal negligence are more difficult mind states to define than “purposeful” or “knowing.” A helpful illustration to make sense of the criminal mind states involves a man throwing an explosive at a king who is sitting: right next to a queen, ten feet away from their driver, and 20 feet away from a procession of people. If the explosive detonates and kills everyone: the king was killed purposefully, the queen was killed knowingly, the driver was killed recklessly, and the procession was killed negligently.
