Transcripts For CSPAN3 Justices 20240705

We wl hear an argument this morning in case 22 138, counterman vsus colorado. Mr. Wyden. Mr. Chief justice and may please the court. The court has long held that because of the importance of free speech in our country, categorical exception to the content regulation must be well defined narrowly limited. Speech cannot be exempted wiout proof of a long set of tradition without subjecting thatpeech to regulation. The state has not come close to meeting its burden without burden of punishing without proothe speaker knew the statement would cause fear. Where this Court Reversed convictions for cross burning. And series of opinions emphasizing the central importance intent plays in making threats actually subscribe. Where the state predicts harm it has shown no difference in criminal enforceme or the availability of civil protective orders and many jurisdiction that is already requires subjective intent. There, prosecutors prove mens rea the same way they always have und criminal statutes through objective evidence of the fendants words and actions. Criminalizing misunderstanding is especially dangerous in an age when so much communication occurs on social media which brings together strangers in an environment that removes much of the context at gives words meaning. It chills expression by imposing prison time who do not tailor to speakers who do not tailor their views to suit the audience. This court shod verse. I welcome the courts questions. Justice thomas i dont understand why you would cite black when black had an intent requirement. The question w wther or not the presumption of cross burning in a fie orcame that intent requirement or demonstrated that. Mr. Elwood if intent was actually required, there isnt any reason why it coult be presumed. Maybe that would raise a due process issue not First Amendment issue. The court it focused e discussion on intent. I have the cstitutionality First Amendment issue. The plaly specifically said the state had presumed way the thing th makes threats actually proscribable. In addition, Justice Scalia said the constitutional defect was in preventing the consideraon of the speakers of the intent of the people who burned the cross itself. I think from tt you can at least say it doesnt establish, its noconsistent with a clear tradition of criminalizing negligent threats. Justice thomas one other thing, the are categories, take for example obscenity. You dont have a subjectiv intent requirement there. Y should this these true threats receive more proctn than obscenity . Mr. Elwood i think especially under mlin said had you to know not only the contents but character of obscene materls which the court described as the conscious purveyance of fih. In the other case, that was the equivalent of knowing your statements would cause fear. I think that it is entirely consistent with the idea there is a subjective requirement at least at the Knowledge Level which is all we are askingor here. What about fighting words . Mr. Elwood fighting wor, people always look to chaplinski that is overreadinof page and a half of analysis that did noclearly presented. What that case deced was that the statue was made and that shouted epithets were not protected. It did not address the mental ste element. Inddion if you look at the , tradition it comes from, bea of peace when it uses threats which is part of what is covered, the idefinitely a specific intent requirement. Subsequent cases by this court have used language saying calculated to promote a fight. Things like that. Rerdless of all that, fighting words is a very vanishingly small exception for basically nose to nose shoinof epithets likely to cause a breach of the acand where police might step in. The urhas declined to extend it under numerous circumstances erwould be smaller steps than extending it to online mmications. You say that even if you prevail the courts will still be able to freely impose civil restraining orders and colorado takes issue with that. Why woult your same standard apply in that context . Mr. Elwood a couple of things to begin with a lot of escially in the stalking context, colorado has a statute that allows prosecutions that dont require looking to the content of speech rath bed on conduct. For that obviously i dont think it would make any difference at all. Even with it, this standard is lower for geina civil protective order. Colorado is relatively high at a preponderance standard. Most states use a good cause stdard or discretionary standard. Thats below probable cause. And people get can you get arrest warnt you can arrest people for specific intent crimes jusbad on the objective words. Thats enty of evidence of the intent plenty of evidence t intent of the actor. Even at the higher standard of obable cause for good cause i dont think that it ou be an issue. As we have said, as sa in my opening, there are many states, over 20, thaha for the threat statute have a subjective intent staar for stalking there are 14 states th he an intent standard and three more that have a recklessness standard. There is no indicationhaeven when its baked into the stalking statute that it presents an issue for getting civil protective orders. I want to follow up on that in two respects. One on the civil protective order side. You are not suggesting, i don take it, i want to make sure, that the mens rea that we pically require in criminal cases, viciously talked ouas the vicio will that is discussed as being part of our common law critical criminal tradition does not necessari carry over into the civil context. Mr. Elwood absolulyot. The only potential feedback is in stas at require a proof of a crime. Might be baked through that route. As a direct measure the argument we are making is the chilling fe of criminal liability. Justice gorsuch second, with respectohe stalking possibility under colorado law, the ates very broad, i understand this particular prosecution had something d with speech, but i dont take your argument. I want to make sure i got it right. I dont take your argument to be upsettg all. Prosecutions based solely on conduct. So that conduct stalking is an entirely separate matter than spch. What you are concerned about is mens rea with speech. Mr. Elwood thats right. Essentially only when the focus of the prosecution is on the threatening naturef e words. Otherwise if s frequency and repetitiveness of unwanted conduct i dont think that presents even a First Amendment question. Not the firsamdment question we have here. Justice kagan could i take you back to the first part of Justice Gorsuchs question. If your basic argument it amendment chill, im not sure why it should make a difference there is a criminal consideration here as opposed to civil action. Indeed, when we talk about libe ihink one of the first cases after New York Times v. Llan presented exactly that question, and the court said, a sanction is a sanction, whether its criminal ocil. It might have the same kind of chilling consequences. As far as i know in past first amendmt allenges of this kind, we have not drawn that distinction. Even though it might be a quit natural one. How do you think we shou dw that distinction here . Mr. Elwood i thinthat the its consistent with the way the court has treated defamation. Defamation in a civil context for puicigures it has the elevated recklessness standards. Its also there in the imal standard. For private individuals it can be basically as long as its not strict liability witth exception of punitive damages. Where they sayagn, you need to have the showing of recklessss i think that is consistent with the idea that punishment is diert from just civil liability, making people whole. Even though the court didnt dismiss that had some ilng effect, civil abity, they said it wasnt enough of a Chilling Effect to offset the states legitimate interest in making people whole in the civil ntt. Ice alito the briefs are full of discussion of gene intent and specific intent. Which i find to be ver confusing terms because criminal statutes have multiple elements and each eleme can have a different mens rea. I would like you to talk about is using the methodology of the model penal code f we look at the elements, do you agree with me that t ement we are talking abouhe is that as applied to a prosecution based on the content of communication, it must be such as to cause a asable person to suffer serious Emotional Distress. Justice alito the question is what are the mens rea up to that point. Are we together on that point . Mr. Elwood yes. Justice alito if csider that using the mens rea variations out othmodel penal code, is it purposefulness, is it knowing . Is it releness . Is it negligence . What do you think it must be t satisfy the First Amendment . Mr. Elwood i think that it should be knowledge of t tng that makes the conduct wrongful. In most threat statutes thats knowledge the wordyouse are going to cause fear. I could see wi t colorado statute itou be knowledge it would cause a reasonable person to suffer Emotional Distress. Justicalo you dont think purpose is required, but knowledge is required. Mrelod that is our argument. Its a minimum mens rea. Justice alito whyount reckless be sufficient. Its culpable. And thre cses damage regardless of intent of the eaker. Why isnt that sufficient . Mr. Elwood i think recklessness would be a big improvement over an objective standard. At least its focusing on the mental state othspeaker. Which i think prevents less of a chilling risk. I think where recklessness has a problem is in a doctrine and hiory. I think it has a problem in doctrine in terms of the convictions in virginia v. Black would have been easy to pull instead after reckless standard. One burned aro on a neighbors yard. I thinth is at least reckless that is going to cause somebody fear. It has a problem i think in history just because the early cases, im thinking here of regina vs. Hill, a british threat case, and the arin case which is a breach of the peace through threats benedict. Spoke in tmsf specific intent. And i think that that is harder sare with recklessness. The statements at issue there were at least reckless that would cause somebody fear. Justice alito one other question. Somewhat different. In order for there to be a coiction based on content, the communication must, in fac constitute a true threat, right . Mr. Elwood i believe so. As this ca ces to us, the threats were really central to the prosecution. D i think that when essentially the basis for the prosecution is the conntf the communication, that it should be a true threat. Justice alito hadepends on the meaning of the communication. My question is whether speaker intent is not built into that. Becausthmeaning of a communication, utterance, is dependent significantly on the intentf e speaker. Mr. Elwood i think that thats true. I think to begin with there are a lot of statements that are ambiguities. A lot of statements that are ambiguous. I dont think the rule we are aski f would make a big difference in a lot of cases. It means essentially the jurys going to start out with wh d these words normally mean, and in most cases what those words normally mean is gngo be the mental state of the defendant, too. All we areskg for is that people should be able to make their case to the jury. Unless they have a persuasive arguntor why those words meant Something Different to th, i think that the juror will say this is Justice Alito this it meant to be a hostile question for you. Its one i wod ke the state and the s. G. To think about. Isnt it inevitable that speaker intents ing to be important regardless of the mens rea presented to the other argument we were talking about earlier. Somebody stood up here and spoke as fast as an auctioneernd couldnt understand what they were saying. I kept saying would you please speak a little more slowly. Speak mo swly. So i could understand what you are saying. Thpeon just continued to do it. D i said, you know, if you continue to speak that fast, im going to have a fit. Nobody would think i was actually threatening to ve fit. It depends on my intent in the context may se people would. [laughter] is built in. I just wanted to give you a chance to talk about it. I think its a prlefor the states position. Mr. Elwood i think te is frequently kind of it can be inferred from the way the statement is me. But it definitely, when cases are tried i can tick ways they can abra it out. Ice gan isnt that the point Justice Alito tried to make. Yes, he may well be right th the speakers intent it would seem to me whenever you are trying someo f a First Amendment violation involving speech for any conduct, criminal or cilthat the speakers intent should be part of the presentation the jury ts thats part of the circumstances. Justice sotomayor but here, he couldnt prenany evidence about his intent, correct . Mr. Elwood thats rit. Justice sotomayor when what he thought. They precluded him from doing that. Mr. Elwood correc they said it doesnt matter what he thinks. Justice sotomayor so how this was charged wainhe aloneness sense. In that sense you have to know you saidhe words, not what you thought they meant, but you said tseords, and that a reasonable person would understand it that way. And it said, no, thats a glence standard. So the only issue before us is, think, are we going to approve of a pure negligence standard that doesnt take into account any of the intentionofhe speaker when we prosecute for speech. Thats really the bottom line, correct . Mrelod that is the bottom line. This case isolates that juice sotomayor i want to go one step further. The s. G. , who is an amicus, is the only one who raises t end of their brief, that if we reject, as we did inlos, negligence thawehould go on even though it wasnt the basis of t ce before us to decide that recklessness would be enough. But that wasnt whats at issue here, is it . Mr. Elwood itnot how the case was presented below. And the actual parties of the case are party to the case has not ever attempted to affirm the nvtion on the basis of recklessness. Justice sotomayor exactly. At issue like in elonis hasnt been raised by this case mr. Elwood i agree. Under the princie Party Presentation has not been raised. Its on bn raised by the solicitor general. Justice barrett i have a question about this civil, crimine following up on Justice Kagan. It seems to me what we are talking about is defining the content or what it means to a that. If the First Amendment excde threats because they are not socially valuable ee, we are looking how to define a threat. I guess i donunrstand why maybe i misunderstood you, it sounds to me like you are definingt fferently in a civicoext and criminal context, right . Mr. Elwood im not sure how to answer the question. The civil protective oer many of them dont require showing a crime. Some of them do. I dont know that there really is an issue about civil threats. Justice barrett imagine this example. Lets say that a teenager in a high school says something lik im going to shoot this place wn. And its devoid of all context. Say its reike the statute in virginia vs. Black which instructedusthe burning of the cross was sufficient for the jury tinr intent. Say there is no context at all. T e school, taking the threat to the school seriously, wants the kid to be baedrom the grounds or wants him to be suspended for a few yso they can assess the threat. Its not cre. Its ju diding whether to keep him out. It would be state action. What abo tt . Could the school do that just based on that one statement . Mr. Elwood i believe so. Hos have are a whole ball of wax. Justice barrett make the father not the student or a teacher. Mr. Elwood if they can bar the parent from thscol . Justice barrett or the teacher. Teacher says im going to shoot this place up. They wantout the teacher on leave without pay for a week. Mrelwood i think absolutely among other things justn terms of public safetyhecan go forward based on the evidence they have of what e reat is, which is the words he used. Frequently the best evidence you have oinnt is the word that somebody used. Unss they produce something else, those are the things Justice Barrett in a civil context. They plan no criminaacon. Say this is civil and the idea is you should knowetr as a teacher. Whether you innd or you the teacher is mentally ill. Whether you understood we would take that to be a threat. I guess i dont understand eighty standard would be different. Mr. Elwood the court has drawn a distinct between civ penalties and criminal penalties. I dont know its penalty to have to miss work r couple days Justice Barrett i know but it is if you are suspended without pay. Because the school says th i just something you dont joke around. Mr. Elwood if the idea is we just want to make him suffer because this is meing you dont want to joke around, maybe that is something more like punishment. Again everything is different in the educational world. Justice barrett why does it turn on again, assuming when y we answering Justice Kagan, you were running to the imal context. Behind every civil restraining order. Thats what you areoi with me. Is the potential of a crime. Maybe my example ist effectively communicating t im trying to maket vil. In the New York Times vs. Sullivan context, intent does matter for the definition of defati. Its a unique one. Here i understand why the elon see what separates culpable from not culpable conduct t left of intent. And that mattered. Im not sure w ichanges the definition of threat for purposes of thdenitional category of speech that falls outside the fit amendment. Mr. Elwood i think part of it just because of the level of protection you get. In the civil context, si a couple days of salary is can be significant penalty. Its noinlike being sentenced to 4 1 2 years in prison. Justice kagan do we have any place o First Amendment where we make that distinction . Rstand you are saying, look, this is a criminal cas a very heavy sentence. And forcing us to say, we have this discomfort with crimes that dont have menre this is a different sort of queson you are not saying, well, just because a crime doesnt have one s unconstitutional. Ur argument is a First Amendment argument. I just dont know very many of our cases or any of r ses that have made a real distinction between criminal penalties and Civil Penalties with respect to whats permitted or prohibid der the First Amendment. Mr. Elwood the only thing i c point to, again, is the defamation context where the draw distinctions between civil liability and punitive damages. Which ask and the cases like i think its reno vs. Aclu where theyaicriminal penalties pose special concerns. E place where it would normally arise is in the civil protective order conte wch i think is reduced because the person who is the recipient of the threats or statements has a first association. It sorts itself out in other areas. Like in the tort of neglect infliction of emotional distssyou typically cant get that based on unless you were physically injured, on a neigce standard. It would require at most a intentional statement. I am not aware of a body of First Amendment case law that talks about the civil implications of punishing thres. The focus is the case beres. I think defamation is enough of a basis for the court to say it makes a difference. You said earlier that your position would not make a big difference in a lot of cases. I think you said that. N u give us examples, not this case, examples of other ses out there where you think someone was criminally prosecuted and should not have been . Mr. Elwood certainly. I think the just versus unjust prosecutions or just versus unjust convictions is a smalpa of the argument we are making. The Chilling Effect comes om being told it doesnt matter the speaker being told it doesnt matter what you in you have to think about the reaction of urudience. So that is pulling apart from whether there are unjust convictions. In terms of the convictions that made a difference. It might have made a difference in the fommer case, the silver lls are coming case. I think there is another ce. One of the broader points i would like to make to e urt is that these kind of prosecutions and these arrests are substantially underreported because local di unless it happens to catch the fancy of local media, is not covered. So some of the best examples are one th iare simply emailed to me by spouses or relatives of the people who are prosecuted. One example is Glenn Schumacher in illinois. The comments page after local newspaper responded a article about littering and crowds and so foh an annual event by sayg rhaps a few placed Pressure Cooker pots. Thve next commenter said we appreciate the cleverness and humor, but thats crass. Clearly the first person whoaw it immediately knew it was a joke. It w arrested 2 a. M. The next day and held for six weeks on a bond youou not afford until he pleaded guilty to essentially disorderlyonct. I think thats an example of a statenthat they would say clearly he did not intend that as a threat. Heit have a criminal record. It made dierence in the outcome. Thats a very sma pt of the argument we are making which is focused on chilling. Chief justicrts to what extent does your case or is it affected by the fact we are dealing wit messages. The most threatening message we have got is, you are not being good for human relations. Die, dont need you. Thats in cold print, you can convey that message in a hostile way or in a way yoardead to me kind of thing. Ifhicase didnt involve text how would this get into the record. Would there be hard copy testimony . Mr. Elwood i think testimony. Even though it was by direct messages, it came in tou testimony as well as they described that in the trial. Chief Justice Roberts whose testimony . Mr. Elwo w. s testimony. Chief Justice Roberts justice thom . Justice thomas just briefly. The Justice Alito asked you whether or not intent could be baked into some staten. That was my probm,y the way, with virginia v. Black. The burning of a cross in the middle of a field doesnt leave much room to imagination. What if someone said in a text, i will kill you, whats missing the to the intent of that person . Mr. Elwood if itsa between siblings talking about you ate the last brownie, itanean Something Different than it is in the case in the interest of Justice Thomas your client here. I willilyou. Mr. Elod well, i think in that case it could be open to lot of different meanings dending what happens around it. Ief Justice Roberts Justice Alito. Justice alito suppose someone writes a story, posts it on the internet or publishes and its a story about its a mystery story about one spouse killing anothespse. Readerwi read it. Think this is interesting or not interesting. But suppose that all of the details match up with the situation of the authors spouse. When that spouse reads it the spouse takes it as a threat. How do you analyze that . Mr. Elwood i think in the sort of Law Enforcement context i think you n op the application of the test with the objective test is about the same. Iwhat would the ordinary person think these words mea given all the circumstances. I think that you would make the same Law Enforceme dision there whether you are applying a subjective test orbjtive test f you talk to the guy and you are convind didnt mean it. He dnt mean to install fear. He thought these are great facts for a story, it makes law forcement decision easier. If you have doubts, if you think maybe hes dointh to instill fear, then as they used to say in the ole 40s movies, tell it to the judge. You treat it just like an objective stda. Indict the guy. Go to trial. Then he s opportunity to tell the jury. Ifts a persuasive explanation, its enough t introduce reasonable doubt, they mit acquit. Justice alito what outhe converse . The spouse readst d suppose its written in the first person. Talks about what the author of the storisoing to do. The spouse reads it and says, well, this is just my husband or my wife is an author. He or she is just trying to wre a story. T a neighbor reads it and says, wow, this matches up exactly with their situation and i interpret that as a threat. What about that this is a problem one minute net communications. Because they go out sometimes to vast and unkwnudience. Mr. Wo i think this is an argument in favor of looking to the speakers intent. Its the same oco in both cases. Whereas depending on the ste that would apply it, sometimes there is a reasonable person. Sometimes there is a reasonable foreseeable audience. And the effect may differ depending on what the person thinks a reanae how a reasonable person would view that. Thats one of the problems with obcte standards generally. It is a rough and tumble of ctors. You dont necessarily know how they would apply in a given case. The court has said time and again how that yields unpredictabity chief juicroberts Justice Sotomayor. Justice sotomayor i think there is a doing there is a wrapper to say a song just abou what ste alito said. Chst eminem from 2014. Justice sotomayor exactly what he said. I think you have made the point, but i want to underscore it for myself, whicisf you dont have some sort of subjective intent in a circumstantial case, you are ki in in the objective reasonable viewer a sort obi to whatever that jury thinks might be the community standard. And okor video game person, player, or a rapper its very diert thing than it would be for a nonparent. Mr. Elwood i agree. Judge floyd on the Fourth Circuit has a good separate inn on this in United States vs. White where he talks abo essentially minority viewpoints, minority religions, frge speech, fringe art tends to be viewed as threatening to people who are unfali with t which is i think the reason why jehovahwitnesses are petitioners in about 30 of free speechas because its a minority religion which is faliar and seems weird and threatening to the residents of new haven, connectic. Justice toyor more of a reason you have to let in people to explain the basis of their innt correct . Or knowledge. Mr. Elwood i would agree, yes. Chief Justice Roberts j kagan. Justice kagan the two areas where we insisted the states have buffer zones. Public figure libel cases and incitement cases, in both those casethe is a very thin line between the no value speech and spch that is of great value. So the advocacies and incitement line is thin. So, too, when ces to defamation of public figures is just a step from extremely valuable commentary about public gus. In those two areas we have insisted on this breathing room. I wonder looking at this case whether we can reallsathat. This goes a little bit to justice kavaus question as well. Whattharea of speech that we think is really going to be chilled by drawing the line in the place where this state and many oertates want to draw it . There is nothing thats sort of close to true threats, b ser valuable, that we ought to be worried about, is there . Mr. Elwood i disaee. One of the reasons we analogize to incitenis the language is frequently exactly the same. We areoi to break their damn next. We mhteed to take some revenge. Is a lot of it sounds a lot like a threat, it will be delivered by somebody else. So, too, here. A lot of the exaleyou can come up with from the bible believers case, insightful case, but turner bn agine a protester speaking to a doctor going to an abortion clinic. He might be warning about damnation or bombing or clinic. There is l of speech on the internet that walks the li. Burn it all down. Come and take it. Second amendment co amendment remedies. There is a lot of ee online that kind of comes close to the line. Its not a matter of absolute clarity which way they would fall. I think it protects that speech which, again, is virtually idencato the stuff that comes up in incitement cases. E ly question is who will make good on the threat. Chief Justice Roberts ce Justice Gorsuch along those lines, the solicitor general, one of its headings says a statement based on its content and context is threatening to a reasonab pson. Has nil value and inherently harmful. My question for you isife were to rule the other way, whats at stake in terms of whats left how do we know when a reasonable pers igoing to find something of minimal value and inherently harmful. Mr. Elwood i recommended the amicus brief. Aclu. They do a odob of talking about how when you tl speakers, it doesnt matter what you think, it what matte i the audience reaction. Instead of thinkg out what do i view as the truth, what to mmicate, they have to think about, well, whats going to get men trouble . It automatically causes people to kind of to chill, to go back to the area they have safety. That is what you would lose. You would lose some of the rough and mb much speech which is especially important on the internet because, again, as i say bngs together strangers aarea where you dont have context. With sanrs, even less of that context. Chief Justice Roberts Justice Kavanaugh. Justice kavanaugh a couple things. I think the state and the s. G. Say there are certain kinds of threats eyre concerned about. In particular presidti threats. Thatagainst the president. Stalking, School Threats, Domestic Violence. And that its a defense like the one that would be present with your mens rea would ket easy for someone to say i was joking and kidding, and therefore threats that would be quite dangers terms of waiting until the next step of carrying through with the threat while t will not be addressed. How do you respond to that coern . Mr. Elwood i thinth president ial threats after elonis was subject to an intense standard. I give you an answer similar to earlier,hiis not going to make a difference in the run of cas cause ordinarily the way a asonable person would view marks is the way that the defendant probably vieweth remarks unless they can present some sort of persuasivreon why it meant Something Different to them. They can prentome sort of Justice Kavanaugh what about the wajust joking, kidding . Isnt that a constant. You go to the house and the guy ys i was joking around. The Police Officer is stuck. Mr. Elwood you go beyond that and say to some peoe e joke is causing people to scurry around. Did you know there was was it going to alarmhe did you think the police might respond . If the answer to that is, yes, thats very easy. If the answer is no. It may not be incredible the threat was im going to kill you or come cut your throat. Theres be we have had many states that have a mens rea statute. Therisver 20 for the general threat statute require a showi of purpose or intent. There is more that requis something less. There hasnt enhowing there is a big problem or it cant be solved whether these people will be granted lense to get away with things. You have to have persuasive reason why the words meant Something Different to you. Its not enough to say its a joke. You have to put together a persuasive reason why you didnt know it would cause fear. The governments recollection is even lower. Under recklessne y cant say, i had no idea that people would view that as a threat. Justice barrett everything youre saying im comfortable wi aa matter of criminal liability but im still stucon e vilcriminal point. I think virginia v. Black is language in there about intent but the case can be detood in which there was no context. The context s ripped away and so aeanable person thrfrbgs no way to judge as ataw was written whether a reasonable person in context would have understood it aa threat. I dont think it gets you all the way there. To Justice Kagans point about the thin line between them, wont context protect most often a arue threat has to be one of physical harm, right . Mr. Elwood yes. Justice barrett a lot of the examples it seems to mth were in some of the am cuss amicus briefs and in your brief, ones in which context or requirenthat something actually be for bodily harm wouldnt be present. Arwe talking about a narrow slice of cases in which somee is mentally ill or, you know, for some reason, maybe autistic, and just doesnt priate the context . Is that the naowand were really talking about . Mr. Elwo eres a lot baked in there. If i could talabt virginia v. Black. I think its important to remember the default rule which is whether theres clrly established tradition of allowing a regulatioofhis speech. At minimum the best they can get out of virginia v. Black is ambiguity, not an brement of neglect speech. In addition,llhe mentions of context er i say context is important because it helps you derme intent. So again, theres nothing in there to suggest you can have st context. Wi respect to context and whether context will sort all of is out, in context makes a big difference in a lot of ces part of that is the foreseeabilityf at. Weve h dcussions of the many ways ill kill you could be met. Whether were talking about spchthats why i refer to that, speakers have to have some sort of confidence in advanc about whether what theyre saying is going to wind them up in trouble. In the past speakers know their intent. If intent matters, that gives them some comfort that they can say what theyre going to say without crin punishment. When the sndd is what a reasonable person would think, then youre thinking, well, what does that mean . D equently you dont know what the answer to that is. We could have a conversation, the conversation i will kill you could have gone on another five minutes and we might not have gone to ground. Justice barrett you should be careful if youre going to say Something Like i will killer or im going to burn kill you or im going to burn it all down or im going tohoot up a school. Mr. Elwood my mother said to me almost everyayf my childhood, im going to kill you. [laughter] but i was never in fear of that. Justice barrett hopefully, context gave you some asrae. Thing that did, yes. Ut the only [laughter] Justice Barrett thank you. Justice jackson so let me just be clear, mrelod. Im yi to understand whether yre saying that in every otr category of unprotected speech, we require some subjective intent with perhaps the exception of fighting words. Is that right . Mr. Elwood i think that thats right. It generally reqre recklessness or sometimes knowledge in the case of obscenity. Justice jackson ok. And thenusto follow up on Justice Barrett and justice kags questions about civil versus criminal. Im wondering, you sayhayour argument relies on the Chilling Effect. Im wondering whether youre perceiving some distinction in a criminal versus civil penalty scheme with respect to the way in wchr the amount of chilling that would occur. Mr. Elwood i think that there is a difference in the amount that occur. One suggested the difference is constitutionally significant. I think there is some Chilling Effect. I think some of that is baked into the decision which is this us case and the negligent infliction of emotional stress because you can generallge emotional damages for negligent speech harms. So i think that there is perhaps that reflects some sort of reflection that there is a ilng effect to imposition of penalties. Again, in the defamation context, the court has said that states have a compelling enough interest in making people whole that they would let those cases proceed in a civil context. Justtomayor may i ask just one question . Chief Justice Roberts s Justice Sotomayor are you saying that you have to always prove somebody intended to coit the act . Or do you have to just say that they knew they were going to put someone else in fear . Mr. Elwood we are only arguing for a knowledgstdard that they knew that the words would cause fear Justice Sotomayor ok. Chief Justice Roberts i dont knowf u were finished or not, justice jackson. Justice jackson yes, thats thank you. Chief Justice Roberts thank you, mr. Elwood. Thank you. Thank you. Maybe please the court. True threats have alyseen prosecuted without protection by the First Amendment. Petitioner now seeks to impose a specific intent element onto isnquiry. Thats required neiery history nor precedent. Doing so would enable more harm and less valuable discourse. Thats becae a serious expression of an intent to cause unlawful physical violence directlyaus lifechanging harms. And does not contribute to the maetace of ideas. Mrweiser regardless of what the perpetrator was thinking. Requiring specific intent in cases of threatening slks would immunize stalkers who are untethered from aly. It would also allow devious stalkers to escape accountability by insisting that they meant nothing by their harml atements. Th mters because threats made by stalkers terrorize victims. And for good reason. 90 of actual or attemed violence murder cases begin with stalking. The court below followed this courts teachings from watts and black thatonxt is critical in constituting a true threat. The robustness of an objective ntextdriven inquiry means that this test wont criminalize a joke taken the wrong way. Political advocacy or hyperbole. It thus protects statements that contribute to the marketplace of ideas. In this case, c. W. Reasonably perceived that countermans threatening stalking conveyed a serious expression of intent to cause unlawful physical violence. The First Amendment does not protect threats like these in either the criminal or the civil contexanthe standard is indeed the same by this court precedence in both. Enabling more harm and leading mposing a specific intent requirement towards the goal of th First Amendment. Enabling more harm and leading to less valuable discourse. I welcome your questions. Justice thomas but petitioners arguing, i think, a bit more. Petitioners also arguingha it has the spillover effect of chilling protected speech, not just that this is protected speech. Now, how would you respond to that . Mr. Weiser since watts, the majority rule in the ovwhming jurisdictions, 50 years, has been an objective standard. And during that time the only osutions they point to, the case you mentioned, was actually a case that was under a specic intent standard. We havent seen in the last 50 years with this objective rule types of harms. And moreover, pnt to the time of the founding that threats were prosecuted without regard to intent. Justice thomas but he also ares that you wouldnt see, necessarily, the Chilling Effect because those casewod not be before you. Thatwh id like you to respond to. Mr. Weiser thank you, Justice Thomas. Justice kagan got to a critical pot. The type of the speech that remains after the objectiv contextdriven inquiry, is speech that doesnt co cse to contributing to the marketplace of ideas. As was said by jti barrett. When yourealking about a serious expression of an intent to cause physical violence and harm someo, ats a High Standard. Coming very close to that standard isnt the sort of speechhathis court has protected under the First Amendment. Saying doesnt come close to otected speech. Heres one t statements for which he was convicted. Staying in cyberlifes ing kill you. Come out f cfee, you have my number. In what way is that threatening . Almost regardless of the tone . Mr. Weiser when its put into the context, mr. Chief justice, what is being said here is if yodont come out for coffee with me, bad things are gog happen to you. Theres other chief Justice Roberts im sorry, this isnt remotely like that. It says, staying in cyberlife is going kill you. I cant ome i havent said that. [laughter] come out for coffee. You have my number. I think that might sound solicitous of the persons development. I mean, if were talking just about what the statentare, how is that what tone would you use in sayg at that would make it threatening . Mr. Weiser the threat in that is, ifouont come out and meet me, your lifes in danr. And the stalking context her like many stalking situations, has someone who believes theyre entitled to the attention and the affection of vtim. Victims of stainroutinely face scores and scores, hear hundreds and hundreds of unwanted, invasive engagements from somebody and the consequence from stalkg ses is if you dont give me what i want, i can turn violent and that indeed doesapn. A significanamnt of the time. Chief Justice Roberts say this in a thrteng way. One of the things he was convicted of, it was an image of liquor bottles and a caption, a guys version of edible arngents. [laughter] they say that in a threatening way. Mr. Weiser the threat here is when you put them all together. When you take onofhese out of context or put it into a different context, it meaning is differe. Here, she cut him off on faceokour to eight times. She got up to 1,000 messages ov aouple of years. She was subject to this toen of activity that was objectively terrifying to her and ulbe to any reasonable rs in that position. And she was hele and she could have seen him at a concert and he cou he harmed her and she was then afraid to pursue her craft. Chiejuice roberts under your theory, the defendant codnt say, right, the first thing anybody would say, child, an adult, whether someone is offended or evefes threatened by their speech is, thats not what i meant. What i meant was, if you stay on the computer, you know, all day long, its i dont know if its going to kill you, but it going to its not good for you. And come out for coffee. Its an invitation to get off the computer. Mr. Weiser the colorado standard looks at the context and the context reas, she had four to eight times cut off access. He kept coming back, kept sending messages in the face of what, again, was a clear sign, i dont want to hear from you. She said at trial, thatthe clearest sign you can offer on facebook. Chief Justice Roberts this will be the last question. Because youre putting it so much in context, he had been doing th, is and this. Could he be convicted for anythi, ying anything . Good morning . And, you know, thats after however many months of doing th . In other words, does the conte of the speech actually matter in the way youre looking at it . Mr. Weiser yes. The content of the speh at crossed the line was when it escalated to a tonanto statements about her life being at stake. Die, dont need you, youre not good chief ste roberts i said that was the last question but i was wrong. [lghr] when you said, when it escalates in tone . Mr. Weiser his messages over time got more aggressive and started using languagehagot to her physical safety. Chief justice bes but tone. To me that means how its annunciated. We dont have any of that here, rit . Its a cold email. Mr. Weer the tone of the statements were taken on by the language that was used. When the language got scary and violent and talking about her life, it was a diffentatter. Also its important to note, there were statements, nice dilawith your partner, seeing you out and about, that so gets to, im being watched. For a victim in this situation, it is entirely reasonable, appropriate,o e this as terrifying, because we know these stalking cases can and often tn violent. Chief Justice Roberts the statute talks about the manner of the communication. So do you say that the statute, you interpret the stutto mean that a peonannot be convicted based on the manner of makingomnications, the content of which is not in thsees threatening . Suppose someone follows a person like c. W. Around. Justice alito nds constantly popping up and has a threatening look to the person and is constantlyayg good morning, c. W. Good afternoon, c. W. How you are now . The content is benign. But the manner is one that would cause a person to be disturbed. Is that not prosecutable under the statute . Mr. Weiser there are two different standards. Theres thcrinal statute and then the true threat First Amendment requirement. Under the statute, the individual h to have intent in the general sense, knowing what the words mean. D ere has to be significant Emotional Distress to the individual and a reasonable person would have toxpience significant or serious emotional stress. So if the statemtss they were said would cause an individualo ffer serious Emotional Distress and someone did suffer that, that would be the stanrdnder the statute. The First Amendment then says it hatoe a serious expression of an intent to cause unlawful physical violence. It does strain my imagination to plausibly imagine any circumstance where good morning is enough to constuta serious expression of an intent to cause physical violence. Justice alito so a person could not be is thaan interpretation of the statute or is that a constitutional requirement . A person cannot be convicted of stalking based on communicating statements that are not in themselves teaning in a manner that is likely to be interpteto be threatening . The First Amendment doesnt allow th . Mr. Weiser the First Amendment requires, in order to prosecute tr threat, that it be a serious expression of an intt to cause harm. Protective order issue. To the you can engage in conduct, but persistent following of someone that would vla a protective order, wouldnt matter what the person was saying or what they innd to do when they were following them. The conduct being prescribed is just the stalking. E llowing that person. And i think wh jtice alito is saying, if there is a statute that says,f u repeatedly follow someone or repeatedly reach out to someone in a manner that csethem fear, that that might be enough. Justice sotomayor you n putting a different overlay on this. Which is what the virginia courts did, which isouspeech has to be threatening. Thats what virginias saying. So i think were dealing with a different case when were talkinabt pure stalking from what virginias doing and the way crged it, which was to say, it wasnt just her serious otional distress, she felt in fear for her life. And so they took it as a they said it was a true threat case, correct . Mr. Weiser correct. Justice sotomayor so all we say is, this is a true threat case because thats the way it was trieanthats the gloss that colorado, i was just thinking of the flag burning case. We like virginia. It controls a place i my mind, that flag burning case. We dont have to opine on what a true slkg statute is about. That is not concerned with speech. Correct . Weiser yes. If i could explain one mut here. Theres three types of stalking cases. Theres the pure conduct ones that Justice Gorsuch referred to earlier. Theres ones where there are threats and i thought that was the nature of the discussion. Theres also a third category of stalnghich is dealt with very ably in the brief that is a different analysis. I could get back to the civil protective order and just i want to follow up on this before we leave it the colorado could have pursued the defendant for stalking and securea nviction for that. The conduct wouldnt involve y expressive activity at all and yd be out of the woods, right . Mr. Weiser had the conduct been being following somebodyrod, that would have been a different form of stalking case. Here the conduct where the statement sent or cebook messenger, sometimes y hr the phrase cyberstalking. Thcorado statute reaches such activity if it meets the relevantrinal statute and First Amendment requirements. Justice rsuch and second, back to the chief justices comment about questions. U emphasized context is really important here. Content and context will do the work. Why isnt the defendants intentions part of t ctext . How could it not be part of the context . Weve hado ny examples here of how words mean Different Things and different contexts. And particulate of it is how there received, surely, but part of it has to be how they were intended. It that part of the context . Mr. Iser the defendants approach and indeed even their testimony is relevant to w t intended and foreseeable audience was. Justice gorsuch talking about the message. Not to whom w directed. Forget about that. Put that aside. The words im going to kill you or, i forgotten what mr. Elwoods mother said to him. Justice barrett drop dead. Justice gorsuch drop dead. Thk you. [laughter] those words have very different context among friends, ang colleagues, among family members. Someby uld say, i had no idea, i thought we were in a relationship. Justice gorsuch but in your ew, context cuts off there . Mr. Weiser yes. Justice gorsuch last question, i hope. We live in a world in which people are sensitive and maybe increasingly sensitive. As a professor, you might have issued a trigg wning from time to time whether you had to discuss a bit of history thats difficulor case thats difficult. What do we do in a world in whicreonable people may deem things harmful, hurtful, thatening, and were going to hold people liable willynilly fothat . I mean, again, solicitor general says a statement thats based on its content and context, putng you a side its intentions, i suppose. Reening a reasonable person is inherently harmful. How do we ta aut history . Mr. Weiser the first point i would emphase,ustice barrett made the point well, it has to be a serious expression of an intent to cause unlawful physical violence. Someone feeling uncomfortable Justice Gorsuch but we have to put intentions adeyou said. Put that aside. Its just in the contt d context, not looking at intentions. Harmful. That has no First Amendment protection under the test thats been purveyed here i would just again put to you, arent a lot of things harmful that we talk about and have to talk abo dficult, offensive to reasonable people . Some of our history could count as that. Some courts cases might even count as that. Mr. Weiser ofnse is not the standard. Youre saying physical harmful, rht mr. Weiser it has to be ysally harmful. Thanks crucial point. It getto lot of the points made in that fire brief aren talking about points where mee theyre physically harmful to. They put me in fear. And there are people, reasonable people, who will say that about difficult subjects. So i take thfrndly amendment from my friend across the bench and still ask you the question. Mr. Weiser the question is, would a reasonable person in that position, not the eggshell defendant, would a reasonable person see that statement as a reasonab eression to cause unlawful physical violence . Thats a High Standard and say it doesnt allow for the ns you articulated. Justice sotomayor i want to take it as a that this is a High Standard and 2 1 2 years of sending somebody unwant emails whether that person has consistently tried to block them and tried to stop them, some of those emails being pretty olt, die, dont need you, f off permanently. Others of those emails suggesting pretty strongly that he is watching the person. Justice kagan only a couple of physical sigin, was that you in t wte jeep . So i want to take it as a given at this can be objectively terrifying. Heres my question for you, though. What would you le, mean, i think theres a question for both of you. To mr. Lwd, its, like, you know, tell me about the cases at should be concerned abt. But i think i have a flip de question to you. Like, how could you not be ae to prove, a least ift s a recklessness staar how could you not be able to prove this case with a recklessness standard . Mr. Is three points. First, as you picked up, whatever First Amendment standard governs here, governs in the civil context. Which includes the School Threats thatusce barrett talked about, you to t includes Domestic Violence cases where a vict iafraid. And so the loss here is not only t criminal context, the loss is the civil context, s both delusional individuals and devious individuals. A devious individualhos a stalker will often say, i believe we werin relationship. I thought what i was saying was benign and its possible they cod believe that and yet once theyre really rebuffed, they can then turn violent which means the following. Do you have to wait until the person engages in violence before you do something about an objectively terrizg threat . This is crucial for the law to be able to pte. Justice barrett Justice Gorsuch waking y about physically following people and you said corado has a statute. Can i finish, chief . Chief justice robes es. Justice barrett are you saying that you could not have prosecuted this under any but this statute because it was solely verbal . Mr. Weis e evidence of physical stalking here are the statemts there were no independent ghngs. She didnt know what he looked like so she didnha evidence that he actually wasollowing her around other than his statemtsuggesting that he was. Justice barrt o there was no way you could prosecute this withouproking the First Amendment question. Mr. Weiser the prosecutn s under the stalking law, they inkethe First Amendment saying these were statements. The defense was, these were true threats and thats how it was decided by the court of appeals. Chief Justice Roberts thank you, counsel. Justice thomas Justice Thomas one brief question. You rely on the reasonable recienstandard. Reasonable persons standard. How would you and you did mention that the sender ul have been delusial how would you monitor the distance between a reasonable recipient and a delusion recipient in establishing your context . Mr. Weiser the reasonable recipient ensures i referenced earlier to jusceorsuch it not be an egg shell defendant. Having idiynatic characteristics. Its in the position someone was inwhat would a reasonable person perceive visavis it being an expression of physical violence . Justice thomas youre putting a lot of weight on that. I think thats why youre getting soanquestions about intent. Its as though that demonstrate the how the recipient fee, whether or not it is to be considered a threat. And you said that the recipient is not eggshell. But how woulyodetermine that . Mr. Weiser the way you determine that is if someone said, i specifically as a person have these particular characteristics atre more idiosyncratic, they wouldnt count. As to the use of the standard, this is whatheourt uses in the fifth amendment case, is someone ctody . It is also what is required in a selfdefense case. What would a reasonable person in that situation view as a serious cause to use selfdefense . The law uses these standards all the time and general dsnt allow the eggshell defendant to define the category. Justice thomas i think the problem you going to run into is the same one that Justice Gorsuch mentioned. And that is it doesnt have to beggshell, that were more hypersensitive about diffent things now and people can feel threatened idierent ways. I dont know how youre monitoring that as what if its tphrou that people are more sensitive, that that is now considered a reasonable person . Mr. Weiser sensitivity has to be towards unlawfuphical violence and that is something outside atight make someone uncomfortable or even hurt their feelings. Justice thomas some of these statements the chief justice read to you are not threeng. In and of themselves. And yet someone could be triggered by those stents or hypersensitive about those statementsndeel threatened. And what im trying to figure ouis if we accept your argument about context, how do we monitor thareonableness that seems to now be on a sliding scale . Mr. Weiser there is both the requirement of a jury making the determination as a fact finder and independent review which happened here at the trial court and the court of appeals. And i also would give you the lid history we have of the last 50 years. Almost every circuit uses an objective standard. Now, one could make a move, justice thom, nt judge it by the reasonable listener, judge it by a reasonable spear. That would be an alternative objective standard that would avoid the harms that i noted to Justice Sotomayor im still a bit confusedy Justice Kagans question and your answer to r. You accept that this man was delusional. You said to her, cldnt go onto recklessness. The prosecutor couldnt prove the se mr. Weiser let me respond to that. I didnt get to that point. You wanted to apply reckless standard, i think the prer thing would be to remand it, to allow the court of aea. That judgment and that analysis wasnt under our standard, it wasnt used. Ifhat were the position to prevail, we think remandwe appropriate. Justice sotomayor m assuming he was convicted and one of the reasons for s ntence for threatening his wife, obviously the coicon was more than enough to stop him from doing any more threatening of his wife. And im assuming this arrest was more than enough to stop him from sending any more unwanted texts to this woman, correct . Iser she left the state and justice sotomar appreciate that. No, no, no, i know her emotional diress was great. And whether theres a vi cause of action, i dont know. But thats not my point. My point is,t at point, i think ths what Justice Thomas was saying, do we in not protecting the First Amendment say an objective sndd alone is ok, with speech that relies always ocoext . And, yes, i know there are delusional people who ll individuals and we want to protect people from that. But at what point do we do it by fining crimes without some sort of knowledge element by the person . Mr. Weiser inusce thomas separate statement alone as he idit would be an odd result to put true threats in the mos protected First Amendment area. Ght now private defamation cases can proceed without any heightened requirement. The limitation on punitive dageonly applies on matters of public concern. The fighting words context, those prosecutions canroed without a heightened standard requirement. Both of those situations involve direct harm on individuals that happen and can be life changing. Justice kavanaugh his sentence here, how much did his sentence here rest onr maybe not how much, was it relevant at ntcing his prior convictions for making threatening communications to in 2003 and then in 2011 his activity of atements that would be threatening to anyone . I wont read them here. Mr. Weis e stalking statute prescribes a one to threeyear sentence that was enhanced up to six years because of t por convictions. Other evidence was presented including his mental health, a judge went f 4 2 years. Justice kavanaugh ok. And then at the beginning of your brief, you start quite helpfully by saying two broad definition here will limit prottespeech and too narrow anpproach will harm the couny. Rtainly agree with that. I think the questions that ple that. I just want to get you again on a recklessness standd. Whats the problems with a recklessness standard from you perspective . That seems to capture some of the concer yve heard while leaving plenty of room, one would hope, to make sure threats are captured before someone killed or physically hurt. Mr. Weiser two answers. Thfit answer is, recklessness doesnt require some prooff at a defendant knew. He then or she then woul disregard it. But proving knowledge in the case of someone whcasay, because theyre untethered from reality, i didnt mean it, could still he tm escape accountability. This would apply in both the vil and the criminal context. So it has broad applicability. Co point i would note is, recklessness is the standardor public figures in defamation cases but thats about the reputation of a public figure. Here its about safe. And the problem that i would note, visavis that standard, is counterspeech, which is one of the justifications. Were going to raise the standard for public figures to recklessness because they can defend themselves in the rkplace of ideas. The problem here, if you try to use counterspeech to a threatening stalker, you make it more likely that it will escalate ultimately into lifethreatening vionc so we dont believe the case, if you compare it on all fours, to public figures in th recklessness for defamation, it isnofhe same kind of harm. Counrsech isnt a justification. Justice barrett who is theu. Reasonable person . Would it be, as we might say in the fifth amendment context for custody, is it kind of a general reasonableern . Or say if something happens on a college campus, is ith reasonable College Student . Which might be different . Mr. Weiser or an elonis, a reonable teenager on the internet . It is in the context that the rs is in. And its important because the norms may be different. People may talk differently on a subgamer facebook grp. Justice barrett thats not quite what im asking. I can look at a College Classroom or a Law School Classroom and i can say, if justice gorsucor were sitting in that context, lets imagine a professowhwants people to understand just how vicious itaso be in the jim crow south and puts up behind them on a scre aicture of a burning cross and reads allowed aloud some threats of lynching that were made at the time. Purely educatialurpose in the teachers mind. But students feel physal threatened. They fear for their safety because they dont understand it. Whereas if Justice Gorsuch and i are looking at that situation, wed say, a reanae person would understand the educational context of that. So how could the student think of it . So i think context doesnt get you all the way there. I think its who is the reasonable pso so who is it . Mr. Weiser its a reasonable person in the situation, but there that situation, an educiol setting, where there really is no threat of direct physicalionce to a person, it would be objectively and reasonable for aonto see that as Justice Barrett black stunt sitting in the classroom. Mr. Weiser if its not a threat of violee that the person is worried about their safety Justice Barrett but the person is reading in the first person an account of what was said d threats of lynching. So theyre using the fir person and saying it. Mr. Weiser i undeta how it makes emncomfortable but unless that person can, again, reasonably perceive it as a threat ttheir safety in that situation, it wouldnt be a true that Justice Barrett so i guess what im getting sat theres protection built in. We might have differences abt who we think are the eggshell audience or t d i was just trying to get you to answer in a way apart from context whether theres any way to takacunt of who the reasonable person is. I mean, you know, maybe s the case that Justice Gorsuch and i ulcould sit in that classroom and think were reasonable people understanding everything you say. But maybe its e se, Justice Thomas talks about changing attitudes, may s the case that nowadays people would be more senti to that and people would say a reasonable blk College Student sitting in that classroom would interpret that as threats, you kno tt might materialize into actual physical harm. Mr. Weiser the context of a College Classroom or, to get back to rap music, a concert takes it unreasonable akes it unreasonable to view yourself as threatened vewhat is going on. That i do believe woulcorol. Justice barrett thank you. Justice ckn yes. Can i just i just want to clarify just so that i c b sure i understand. So you were talking about the reasonable person with Justice Barrett. And is your standard the reonle person in that situation would have perceived statements as a threat, is that what you sing about the reasonable person . Mr. Weiser i would say a reasonable person in a classroom could not and would not perceive generateaching as a true threat. Juice jackson all right. But theres no element of this or no thought about how the statement was mean your view is that the subjective intent of the speaker irrelevant. Mr. Weerthats correct. Justice jackson ok. Thank you. Chief Justice Roberts thank you, counsel. Thank you, mr. Chief justice. And may it please the Court Judgment to make clear whats on the table. Thquestion is only a specific intent and knowledge questn. The answer to the question presented iso cause at a bare minimum, recklessness suffices. Mr. Feigin to be clear, your honor,urrontline position is that there shouldnt a recklessness standard at all. Its not historical, it wou just be a gloss in the way that this court i think hasut gloss on obscenity and other doctrines beusof the essentially judicial policy assessment that thfit amendment requires additional breainroom. But here wed urge you that this justicmayor but youre saying that the historical record supports, clearly supports that no mens rea is required . That its negligence, an objective standard . What do i do with the legion of english cases, american cases all of whom require mens rea . Your opposing counsel was que right that you take a few stray statements from a few cases, but every other sealks about a mens rea. Mr. Feigin respecul, we disagree about the history. He bicly relies on three buckets of history. Mb one, our liable cases, even liable cases under de doctrine dont have a specific intent or knowledgreirement. Number two are Justice Sotomayor you hit the nail on the head. Modern cases. Go on. Mr. Feigin well, the court has not deemed thoseo controlling. I can address the cases individually. Justice sotomayor i dont think its worth it. Youre making quite a broad statement that t htorical record supports your position. Mr. Feiginleme jump right to it. The only way in which he engages in putting aside breach of peace cases that inform the objective fighting words doctrine and the statutes that expressly required intt extort, if we ju lk at the pure thrteng letters, id commend to the court kingerod, a 1776 case, thats about jury instructis, that including no requirement of innt. Or lets take Justice Sotomayor ient is different than knowledge. And hes saying, i look at a lot of the indictments on the cases you cited to and all of them talked about a willful purpose or knowing purpose. Mr. Feigin your honor, the only things that were subtted to the jury in gerwood were knowlee the contents of the letter and whether those contents in themselves conveyed threat. So lets look at another case, their favorite cas the only case they really have on threateng tters, regina agnshill which is a later english case. In that case there was some dispute as to whatheefendant intended, did he intend to burn standing corn, corn t field, or stacked corn, corn that had alreadyeecut and put in the barn and was personal property . And as to that question, the defendants intent was not defendant stated what he intended, which we do think can relevantly inform the context, and butou didnt treat it as dispositive. The ursaid, well, well see if we can Justice Sotomayor intent is never dispositive. s always contextual. The issue is an objective standard keeps out, as it happened in the trial here, the defeas understanding. Mr. Feigin well, your honor, we dont think that a defendants intent in sending a communication is categorically relevant. Justice sotomayor not intent, knowledge. Mr. Feigin we dont think the defendants intent or knowledge is necessarily relevant. You just said its no necessarily irrelevant . Mr. Feigin i want to distinguish between a couple of things. So its not necessarily irrelevant . Is that fair . Mr. Feigin if i could expand on that poi iould like to just sort of not leave it abstractly hanging. Yeah. Mr. Feigin let me jt lk about two Different Things. One is, what a speaker is thinking at the ti the speaker makes the statement is relevant in the se y an objective inquiry into, like reasonable suicn or probable cause, you ght take into account what the officer was thinking whehe stopped the car because thats what a person might think. Then weveothe Justice Gorsuch i take that point. Buev that wasnt permitted here. No evidence of his knowledge was permitted. Mr. Feigin what i tnke wanted to introduce was evidence that might go to Something Like mental delusions he was suffering, that he was having a nversation Justice Gorsuch whatever. He wasnt alloweto produce any evidence about his mens rea and you admitted uerour version of the objective standard thats relevant cteual evidence. I think. Mr. Feigin it can banto the extent he was forbidden from raising e statement Justice Gorsuch that was there. Mr. Feigin yo hor, im not going to defend a particular evenary ruling in this particular prosecution. Justice gorsuch l mback up and ask you anotheqution about the sty. Because i read it a little bit diffeny than you do. Look at you said gerwood but even there t jy was asd ether he knew the contents of what he wrote and whether the terms of the letter convey aactual threat. So theres knowledge there, i think. Voucher heavily relied on by you anyo friends. But the next sentence you dont quote is, no one who received the letter could have any doubt as to what the writer meanto threaten. And i guess i put the question to you this way. Criminal law, vicious will has been an essentl part of it. This courts made it clear. And im t aware of many circumstances in which someone can be sent to jaifofour years guilty of a felony without any evidence of mens reaomg before the jury. Mr. Feigin i think that the mo s presumption is a presumption about legislative intent and legislatures, to be clear, dont have to adopt objective standard. This courts opinion suggests that juste rsuch i understand that. I appreciate that. Buyd agree its a very unusual law in this country for lo not to involve any question of mens rea. Highly unusual. Mr. Feigin its not unknown to the law. It is uncommon. But let me list a few reasons, if i could, of why legislatures might have the calculus in favor of criminalizing this speech under an objective sndd. Number one is that it enables very devious defendants, aga, when elonis did get on the stand, he said, dit care what other people thought and his tu post invoked the First Amendment and true threats doctrine. Number two, and this applies to any standard, including recklessness, but its obviously much wor wh specific intent, it impedes Law Enforcement from actually arresting and bringing charges at an early stage. Eyave to wait a lot longer for the objective evidence to build up. Elonis isnt uncommon in his fact pattern. We are curnt sitting on matters that we do not feel comfortable chargingt e moment where you have things framed in wish and hypotheca and i wish someone would kill you. If only i coulco do it, i would walk right up to 19 m street. You know, that sort ofhi is a kind of thing th alever threatener is into use and we simply cannot intervene because we need to be very, very, very sure were going to get a conviction. Justice gorsuch you think someone convicted for saying, i wish someone would kill you . Mr. Feigin repeated statements of that sort, for example,he court might look at elonis who was reconvicte who just recently was reconvicted for threatening assistant u. S. Attorney, his exwife and his exgirlfriend. Justice gorsuch so s i wish someone would kill you, and the person who said that doesnt get to testify a s what he meant, he can say, well, of course i didnt meant. And heres why i didnt mean it. Or Something Like that. Mr. Feigin can testify to th. And the jury can see what they ink of it. I assume its ok if i sw your question. Chief justice robes think ill let myself go on. [laughter] mr. Feigin of course he can, your honor. But my point is they have to the first of all, were never doing these things in isolation. Context always matters. D e prosecution needs to build up enough circumstantial evidence because iweont manage to convict, weve purity the victim n oy through the rigors of the trial, the lesson the victim draws is, even the law cant protect me. Anin these cases, that is very important and to at least allow legislators to hava ns rea of recklessness which is if you answered the question presented yes, which would be the on sifor reversing the judgment below, legislatures would no longer be empowered to do. Chief Justice Roberts thank you. Justice kagan would i be right theres a large difference between saying in most cases a person should be allowed to take the stand and testify as to his state of mind and on theth hand saying that a psetor has to prove something about his state of mind . In otheror, the first just going to a general sense of contt out what a reasonable observer mhthink about the conduct . Or the speech . And the second being an element of the offense theres a big difference between those two. Mr. Feinthats absolutely right. That i thi iorms the discussion i was having with juicgorsuch. Which is, i mean, the speaker there, the speaker intdso convey something, that may not only say is being how a reasonlebserver may perceive it, but may give you some additional context as to, for example, if its a spoken threat, tone or whatever. Justice kavanaugh im wondering Justice Kagan im wondering what you tnkf this criminalcivil dichotomy in this context. Because i think although you say theres no independent constitutional re at there cant be a crime without knowledge or even recklessness. Yet a uncomfortable with the thought, uncomfortable enough that when we say,ou know, we have to be really convinced that the legislature wanted that. Thats a separate issue. Iteems to me from this First Amendment issue. Or is it . Is there something to the fact that the two things are coming at us at the same time and we can kindf nnect them in the way that mr. Elwood suggests and co up with a rule of the kind he wants . Mr. Ig i agree that theyre separate inquiries. For a category of unprotected speech, its justnprotected and the legislature can either provide for civil or criminal liability. Thininct that i think youre channeling that were unmfortable with it in criminal law finds its way into other doctrines. Number one would be the presumption of mens rea that i was discussing a little bit earlier, that the court applie and made clear was notecing the separate constitutional issues. And another one would be, and you can real s this if you look back at the old cases older selike New York Times against sullivan, that the criminal law comes wit additional constitutional protections. The fifth and sixth enent, you need a unanimous jury, you need proofeyond a reasonable doubt. And precisely for that reason is why New York Times against sullivan was actually more concerned about civil liability than criminal liability. As far as the broader distinction where i thk counsel for the other side is suggesting this isnt going to affect Civil Protection orders, i dont really understand why. I suppose the court could just y that in its opinion and that would be helpful. But theres no logical basis for distinguishing between a Civil Protectionrd that depends for s finition on some mocuof proof that somebody committed an actual criminal offense, which must be defined by specific intent or knowledge, and the actual criminal law question that were debating here. Ste kagan thank you. Justice kah it seems like in figuring out the mens rea issue, were making quasipolicy judgments about where to draw the line. And in thinking about that, you alluded to this buid be interested in you just telling us from the feragovernments perspective, what are the proble tt you see that would be caused by adopting tioners rule . Like real concrete kin o cases that would go unarrested, unprosecuted. Mr. Feigin i tried to jam this in a bit earlier. Justice kavanaugh take a minute or so. Igin to expand on it a bit more. Mber one, there are delusional stalkers, or not just stalrs like delusional threens, and we have to accept their harms. There are also devious ones like elonis. Id mmend to the court looking back at some of the statement he is made that are recounted in e urts opinion in that case, we clearly see someone tryingo e the line and thats exactly what these people do. And were not prosecung them on the basis of onstatement in isolation like, i hope that someone kills you, its that combined with knowledge of someones addres e. , that just walk right up to the line and then they hope that they can get f ottfree because of some heightened intent requirement. Number two is that, as i was ggesting earlier, and this is true of both recklessness an knowledge and specific intent, but obviously more true the higher you get up the mens rea chain, becauseere going to have to prove subjective mindset through circumstantial evidence, which were allowed to do, but thats really all were going to have. We gng to have the statements themselves and if were talking aboutn online threats case, thats going to be about it. So we have to wait quite a while before the statements rise to the level where we are comfortable bringing the prosecution d re that were going to get a guilty verdict and we need to be more sure in this context than we feel like weeed to be necessarily in other contexts. Justice vaugh do you consult with the victims on that . Yosa you were worried about the victims. Doouonsult with the victims . Mr. Feigin in some cases we might. In other cases we might have a reluctant victim. But i think the critic pnt is no matter what, were going to need the victim to testify and thas going to be an ordeal. Were going to need the vicm the victim will be aware that thtrial is ongoing. Theres a brief fromheictim in this case that details some of these harms. And if were unable to get a conviction, thats going to send a message to the victim that im on my own, the law cant protect me, notwhsnding whatever bandaid they want to put on Civil Protection oer which themselves arent going to last forever. And raise substantial due process concns and would be called into question by the role that petitioners urging unless were going to draw some kind of illogical line thats inconsistent with this courts precedent, as Justice Kagan has, i think her questions have gotten a Justice Kavanaugh one last question. Are yoawe of statistics or studies, and this could be hard, mders, school shootings, Domestic Violence incidents, that perhaps could have been prevented if threatsadeen taken more seriously beforehand . Mr. Feigin im not sure, your honor. I mean, i dont have any numbers for yo i can tell you, and i think this probably reflects the experience from wchour question draws, is that there is frequently after one of these horrific incidents some question w didnt you intervene, why didnt you respond earlie and i imagine petitioners unls about to get up and say, you can intervene. You can send an agent to check whats ing on. We did exactlyhain elonis anwh happened . He sent another threat. The threat against little asian dy and we had to charge that threat too. It did not deter him, it did not stop him. We reny reconvicted him for another series of threats, including threats to an assistant u. S. Attorney. Its very important that the prosecution has some abili t intervene at an early stage and legislatures shouldnt be precluded from making a judgment that reckless defendant to dede they will inspire fear in others to furer their own. Successfully ran the Boston Marathon omoay thankfully. If someone had called up to the police staonnd said, i i dont think that the person shld be able to get off for making a thrt mply by saying that he thought the Police Department had a better sense of humor. I just want to be clear on at. In your ve last hypothetical, would they defendant be allowed to at least testify to his ste of mind and making those thres . Yes your honor, but i want to differentiate between two forms of suggestive mens rea, the type thing that might come in. One is evidence of what the defendant was tnkg with a different tt defendant said thstatement, that sort of thing could come in, but evidence about delusions and illnesses and the stateme that i have some sort of mental deficien tt impairs me from unrsnding what a reasonable as a constitutional matter, we tnkback to what we were sang tJustice Kagan, the just the constitutional matter, we think the only thing that the elements will require is that a reasonable person would, not just that some pern could, but a reasonable person necessarily would interpret the statement, a reasonable person would beyond a reasonabl doubt is what i mean by necessarily interpret the statements as a threat of unlawful violence. That is the constitutional floor , many legislatures go above it, but they dont absolutely hav to for all ofheeasons i was expanding on with Justice Kavanaugh. Society does not need to accept that these harms are necessarily going to occur a allow people to inflict them and thank you. Re . Just a few points. The burden the restriction is on speech. Constitutional matter andhe practicalities of bringing the burden is on them to show it wod cause a problem. The constitutional end, i would say to the extent traditionnd history and doctrine, the tie goes to speech and i think that they arent. I tnkhey have on one hd, virginia versus black. A knobby upperhand regina versus hill where the government admitted they considered the subjective intent. They looked to see wt meant by them in order to determine whether it was ahrt and if i remeer correctly, in terms of prtical implementatio, en colorado argues that the majority rule is an objecti one, thats talking about the federal constitutional rule. They say thats the constitutional rule, but the most common mens rea is purpose or intent. Isure more have recklessness and they have not shown us a problem inny of those states. The federal government h been living under these rules and the examples that the government gives our devious defendants, people i ul say the differcehould not be the difference between an objective stdardnd a subjective intent because after all, you have to prove under an objective standard when somebody says i wish you would die that you would have to say he doesnt mean im going to kill you and ordinarily when yowe talking about howou prove to the jury, u ove it the same way either way. Thonly difference is whether or not the defendant gets up at four their explanation of what those wordme. Justice scalia said in spch case, courts and juries every day as uponnoedge, belief having before tm more evidence of the defendants words or conduct, mental cdition may be inferred and for somebody saying i wish you would die, he may get up in there and say oh, the question is did you think that that would cause that personal that person fear and if they say i email this person 20 times saying wish you would die but i did not mean for them to feel fear, the jury can conclude that most people would draw that the guy is guilty seen. Asent. The excuse of regulators is people can get up and say ita joke, but if you email the boston mathon and sam want to be starting part two anyo dont just say it was a joke, the quesons do you think he would cause harm. Did they disregard . This only one way tanswer that question. It is not going to affect a lot of convictions. It will affect speech neficially and in much more ways. Th focus is on the thing that matters, the thing that speakers know their intent. They dont know a reasab person, we could talk about i for another hour and still not know who i reasonable person is or how reasonable person would interpret that. Subjective intent is