Cite as: 575 U. S. ____ (2015)
17
THOMAS, J., dissenting
state of intent when it comes to threat prosecutions
under §875(c), primarily relying on Watts, 394 U. S. 705,
and Virginia v. Black, 538 U. S. 343 (2003). Neither of
those decisions, however, addresses whether the First
Amendment requires a particular mental state for threat
prosecutions.
As Elonis admits, Watts expressly declined to address
the mental state required under the First Amendment for
a “true threat.” See 394 U. S., at 707–708. True, the
Court in Watts noted “grave doubts” about Raganksy’s
construction of “willfully” in the presidential threats stat
ute. 394 U. S., at 707–708. But “grave doubts” do not
make a holding, and that stray statement in Watts is
entitled to no precedential force. If anything, Watts con
tinued the long tradition of focusing on objective criteria in
evaluating the mental requirement. See ibid.
The Court’s fractured opinion in Black likewise says
little about whether an intent-to-threaten requirement is
constitutionally mandated here. Black concerned a Vir
ginia cross-burning law that expressly required “ ‘an intent
to intimidate a person or group of persons,’ ” 538 U. S., at
347 (quoting Va. Code Ann. §18.2–423 (1996)), and the
Court thus had no occasion to decide whether such an
element was necessary in threat provisions silent on the
matter. Moreover, the focus of the Black decision was on
the statutory presumption that “any cross burning [w]as
prima facie evidence of intent to intimidate.” 538 U. S., at
347–348. A majority of the Court concluded that this
presumption failed to distinguish unprotected threats
from protected speech because it might allow convictions
“based solely on the fact of cross burning itself,” including
cross burnings in a play or at a political rally. Id., at 365–
366 (plurality opinion); id., at 386 (Souter, J., concurring
in judgment in part and dissenting in part) (“The provision
will thus tend to draw nonthreatening ideological expres
sion within the ambit of the prohibition of intimidating
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