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