Cite as: 575 U. S. ____ (2015)
19
THOMAS, J., dissenting
liability in tort for false statements about private persons
on matters of private concern even if the speaker acted
negligently with respect to the falsity of those statements.
See Philadelphia Newspapers, Inc. v. Hepps, 475 U. S.
767, 770, 773–775 (1986). I see no reason why we should
give threats pride of place among unprotected speech.
*
*
*
There is always a risk that a criminal threat statute
may be deployed by the Government to suppress legiti
mate speech. But the proper response to that risk is to
adhere to our traditional rule that only a narrow class of
true threats, historically unprotected, may be constitu
tionally proscribed.
The solution is not to abandon a mental-state require
ment compelled by text, history, and precedent. Not only
does such a decision warp our traditional approach to
mens rea, it results in an arbitrary distinction between
threats and other forms of unprotected speech. Had Elo
nis mailed obscene materials to his wife and a kindergar
ten class, he could have been prosecuted irrespective of
whether he intended to offend those recipients or reck
lessly disregarded that possibility. Yet when he threat
ened to kill his wife and a kindergarten class, his intent to
terrify those recipients (or reckless disregard of that risk)
suddenly becomes highly relevant. That need not—and
should not—be the case.
Nor should it be the case that we cast aside the mentalstate requirement compelled by our precedents yet offer
nothing in its place. Our job is to decide questions, not
create them. Given the majority’s ostensible concern for
protecting innocent actors, one would have expected it to
announce a clear rule—any clear rule. Its failure to do so
reveals the fractured foundation upon which today’s deci
sion rests.
I respectfully dissent.
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