Very, very small figure of speech. It will result in a reflex of violence. There is no time for anything but a response. The only option is it put the cuffs on the guy before he lands a punch. And we were talking about incitement and true threats. There is so much more time for the Law Enforcement inquiry. There are options other than immediately cuffing the person. And because it involves a much broad broader category of speech, its important to have inquiry into what the intent was. You know, basically, under the government standard, any speech that uses forceful language on rhetoric could be at risk. Somebody who in ferguson moshgs month, the night of the riots tweeted a photo of Law Enforcement officers over the motto, the old motto the tree of liberty must be flesh with the blood of tyrants. I mean would a reasonable person foresee that is viewed as a threat about it Police Officers . Again, i wouldnt want, you know, have a felony conviction against it. This is valuable First Amendment language that has to be protected . I think there is or the kind of things that were quoted earlier . I think when youre doing it as a category, yes this is valuable language. Virtually any language that uses forceful rhetoric could be penalized. As i say, the blood of tyrants quote. It has to reasonably put somebody in fear. Exactly, a very low standard. A low standard. But to my mind, it doesnt eliminate a whole lot of valuable speech. At all. For example, another example i would like to reserve the remainder of my time for rebuttal f someone puts on the Facebook Page a picture of a woman walking into a Family Planning clinic over the phrase turn or burn, you know, maybe that is a statement of, you know, Christian Doctrine and she is going to go to hell. Maybe that is a risk of a firebombing. But with that id like to reserve the right of my time. Thank you, counsel. Thank you, mr. Chief justice. May it please the court, the court made clear that true threats which are not the best word in the world to describe them. They cause fear and disruption to society and to the individuals targeted. And for that Reason Congress enacted a statute that depends upon a mans component and an actor component. This is that the individual has to know and understand what the individual is saying. Congress reasonably presumed that people who are speakers of the english language and who know that words with the meaning of the words is that they speak are accountable for the consequences of those words. And the minimum penalty is what . A fine. Right . That is correct. There is no mandatory prison sentence here. But it is a felony . Yes. It is a felony. I think congress was quite clear that when it enacted this, it did not prescribe any additional specific intent or purpose to frighten or to threaten that petitioner up until standing at the podium today appeared to argue for. Petitioners position knoll today was that its not a threat if somebody can say hey, didnt really mean it. Sorry. That wasnt my purpose or intent. I knew that the words that i was speaking had the language in them that they did. I can take it that a reasonable person would have interpreted that way. Petitioner would even cut out recklessness. Even if he was consciously aware it was likely to cause fear, petitioner would thats exactly the point thats bothering me. Im with you down to forget the purpose. Im with you there. There has to be a true threat. Well assume that. But now the question is knowledge. And thats the general requirement for members raya. That is at normal rule, knowledge. You have to know those portion thats make up. You have to know the elements. One of the elements is a true threat. So i thought what do you say you have to know there . And when i read your brief, you first said he has to know, he has to understand the meaning of the words he speaks in context and must intentionally speak them. And is showing that defendant acting knowingly in trans mitting a true threat requires proof that the defendant knew he trans mitted a communication and he comprehended the context and context. Now when i first read that, my clerk disagrees with me, i thought that means he has to know that it is a true threat. Ie, why did i think that . I just saw people being sworn in. Suppose someone comes from, i dont know, and he hears them say i do, i do, i promise. Does you know the meaning of the words . Unless he knows the so marriage is better. Someone who never seen marriages, hears the bride say i do. Does the person understand the context of those words . If he doesnt know that that means theyre married and go through a lot of Legal Proceedings . Similarly, can a person know the meaning in context of true threat unless he understands just like the words i do what a true threat is . The individual can know the meaning of the words without necessarily drawing the same conclusion that the recipient of the communication or reasonable person would. That is, i think force. Are you quarrelling with Justice Breyer . Yes. Why are you quarrelling . Its not enough for you, for us to say a true threat is when you intend to put another person in fear or you know that your words will cause a reasonable person to feel fear. Youre quarrelling with that farm lags . Thats right. You want something broader. What we want is a standard that holds accountable people for the ordinary natural meaning of the words they say in context. But in context is right. Is it reasonable person and examples that were given of the teenagers on the internet or is it a reasonable teenager on the internet . If there is such a thing. Sorry, chief justice. The context that was used understand the jury instruction in this case and its an appropriate one, its more protective of the defendant, perhaps, than a reasonable listener approach. A reasonable speaker approach. Whether he would foresee that a person to whom the communication is addressed would interpret it as a true threat. I think but there again, were talking about what subculture youre looking at. I mean its the internet exchange. Is it the what a reasonable teenager thinks how it would be understood by the recipient of the text . The speaker chooses their audience. The speaker can communicate and completely private manner on a Facebook Page, the speaker can make certain aspects of the communication private. Or the speaker can open it up more widely. I dont think this Court Requires this case requires the court to decide the full dimensions to what the context is because here it was quite clear what the context and the i know. But youre asking for a standard that would apply across the board. So if the teenager has a the love friends on his Facebook Page, then they evaluate it by a different standard you . Know, friends over different age groups and everything else. Thats a different . It will depend to whom hes communicating the statement f were communicating among favors in facetoface context queshgs say certain things that will be understood as sarcasm. But when we widen the audience and put a statement out, any situation where reasonable people are going to react to it by saying this requires attention this is a threat against an elementary school. That doesnt seem to me answers just scalias hypothetical of the friend who calls to report the threat or another hypothetical what one student says i have a bomb in my lunch pail and the other student hears it and tells the principal. Under your view, the person that hears tells the principal can be liable . Thats not our view. I think its important to clarify. What is the suggested instruction you would have in order to eliminate liability and my hypotheticalal or Justice Scalias hypotheticalal . The statement has to express a serious intention of the speaker to inflict bodily arm. Well, that was not in the instruction that was given in this case. Not literally and its not instru instructed. The instruction given does not meet the standard you just gave. Justice kennedy, i think does it if you read the entire context. It was understood as being a reference to the speakers intent to carry out the threats. Were not asking for it seems to me if thats the case you should have no problem accepting the specific intent. Specific intent all the time. Let me give you a couple examples of his position as i understand it would cut out. It would certainly cut out people who are reckless, people who are consciously aware this is taken as a serious expression of an intent to do harm and the speaker says im going to disregard that and say it anyway. How about using that exact standard . And its similar to the way Justice Breyer had it. Its knowledge that a reasonable person would cause fear. You could say its basically the same thing to say to say, you know, substantial probable that person youre talking to would feel fear. So either way, you know, theres a little bit of a fudge factor as to but the critical point is that you have to know something about the probability that youre going to cause fear in another person. If you really dont know that thing, then youre not libel. What is wrong with that . The first thing that is wrong with is it immunizes somebody who makes that statement and then can plausibly say i just realized i called in a bomb threat and a school had to be evacuated. I knew what i was saying but i was too drunk. Drunkenness is not a defense in a specific intent case. Drunkenness is a defense. I mean with knowledge. I mean i want i think that any standard that im trying to get you to focus very specifically on forget the First Amendment issue here. Take it to side, forget it. Lets look at ordinary horn book criminal laws after the model penal code. There the normal, as you say in your brief, requirement is that the person know the elements of the offense. That is normal. If it is drugs, he has to know that this is a drug. If it is a flthreat of force. So why shouldnt he here have to know what is an element of the crime, namely, that there is a true threat as so defined . Are we departing from it or not . Actually, your description of the bank robbery situation is illustrative. If you just look at the statute that this court is going to consider tomorrow, 2113, termented terment ed interpreted in carter. No intent element. No specific intent element. I degree with you no specific intent. That is you dont have to have it to be your purpose. Thats why i use the model terminology which for me is easier. You dont have to visit as your purpose. But do you have to know the elements of the defense. You just have to know what youre doing. All right. You have to know what youre doing. And you have to communicate a true threat. The petitioner is not disputing that he knew the words he was saying. Were not disputing that the government has to show that individual is aware of the words that theyre speaking. The dispute here is over whether the government has to show that petitioner actually intended to cause fear or today mr. Elwood proposed moving down a level to knowledge. He proposed moving to recklessness. When Congress Passed the statute, it intended to capture all of those people by making no intent element in the statute beyond the knowledge whast speaker is saying. When youre an english speaker so the drunk enperson who says i dont know what i was saying, is he or she guilty . Yes. The drunken person who creates panic and disruption and would be reasonably turpted as having uttered a threat is guilty under mr. Elwoods position in his dreef that individual would not be. Because involuntary intoxication can negate specific intent. It is horn book law that is a defense. Under the position that he argued at the podium today perhaps not. Voluntary inintoxication doesnt negate knowledge. Im still not sure how you answer just scalias hypothetical and mine. The threat is just repeated. Lets say the newspaper prints it on the front page. The newspaper is not expressing its intent to or making a statement that reflects the speakers intent to inflict harm. What the threat is a statement that the speaker makes which on its face and in context would be understand as an intent to inflict harm. Repeating it doesnt have that characteristic. Thats how they were understood. If the have the statement in the style of rap music which several of these were, is the renl prn supposed to be someone familiar with that style and the use of what might be viewed as threatening words in connection with that music or not . It depends on whom the speaker is speaking to. I think the individual has to understand that not everybody will have the same private meanings that that person attaches to rap music and will bring so that does the subject the prosecution, the lyrics that a lot of rap artists use. Its pretty clear that purpose of the communication is entertainment. People seek out rap artists because they are seeking some form of entertainment. So how do you start out if you want to be a rap artist . The first in communication. You cant say im an artist. I think you have perfect freedom to engage in rap artistry. You dont have freedom to make statement thats are like the ones in this case where after the individual receives a protection from abuse order from a court which was based on facebook posts that his wife took as threatening, he comes out with a post and says fold up that pfa and put it in your pocket. Will it stop a bullet. He knows that his wife is reading these posts. He knows that his posts despite the fact that theyre in the guise of rap music instilled fear in her and he ramped up and escalates the threatening character of the statements. This is completely different. Just made a wonderful closing statement. Is it going to harm them . I think the clearest problem would be if the court goes with the position that petitioner advocated in this case which is that there must be a purpose to frighten. It cuts out recklessness. I would disavow that. He said he has to know that she will be in fear. Theyre arguing the case in the supreme court. I agree they should know what the Fourth Amendment requires. But there was no request for a knowledge instruction. There was no argument that the proper standard is knowledge. There are is a distinction between purpose and knowledge. So the idea that backing off this purpose is fanciful. There is considerable difference between knowledge and recklessness. Do you agree with that . If i understand that correctly. I think youre understanding it correctly. I think i would attribute more distinction. Knowledge under the model penal code is acting intentionally with knowledge of two practical certainty that result will follow. It doesnt have to be to the level of knowledge. So there is exactly. I think thats a distinction. Im thinking that perhaps a lot of these case was come up in domestic relations disputes. The question be would because people get into heated arguments, do you have to show the defendant, used some words that in context would be taken as a true threat . Or do they have to have that characteristic . Now if im right the former. I know. You think the former. The real issue is it the former or latter . Correct. And if its totally open in the history and so forth, i think people do say things in domestic disputes that theyre awfully sorry about later. Im hesitating to say that congress hes lacking something there. Maybe its fault that he is lacking it, but he is. The jury instruction in this case said right before the passage that weve all been focused on dl is on page 301 of the joint appendix among many other places is after giving the definition of the true threat, Justice Breyer, the court said this is distinguished from idle or careless talk, exaggeration, something said in a joking manner or an outburst of transitory anger. So the context of this instruction took into account the concern. It cuts that out. Counsel, lest we define defendiancy down, i dont agree with the proposition that in intermarital disputes, people make physical threats to the person. I think thats rather unusual. I think that even even in the heat of anger. And it often will trigger just what happened here. The spouse goes and gets a protection from abuse order. And the individual is on notice that that persons statements are being interpreted as a threat and a judge validated that. And then you have petitioner going on and continuing to do that. I think this is one of the best reasons for the court not to add an element that eight out of the ten regional courts of appeals have not done for decades. Its not led to the kind of problem youre asking us to go down its not purpose, its not knowledge of cause and fear. Its not a conscious zrdisregar. Its just that you should have known you were going to cause fear, essentially. And thats not the kind of standard that we typically use in the First Amendment. The only time i can think of is in the fighting words context. The First Amendment requires a buffer zone to ensure that even stuff thats wrongful maybe is permitted because we dont want to chill innocent behavior. I guess the question is shouldnt we allow some kind of buffer zone here past the sort of reasonable standard that youre proposing . I dont think so. If you look at the kinds of case thats attracted this courts buffer zone, like the New York Times versus sullivan. You were talking about statement thats were made to Public Officials or public figures, perhaps expanded to matters of public concern where there really was a social interest in preserving that speech. Here what youre talking about are criminal threats. Statement thats taking away any private meanings that the individual attached to them would leave observers of the view, hey, this guy intends to carry out act of violence against somebody. That is not something that has First Amendment value. There are many ways to express yourself. What about the language at pages a4 to 55 of the petitioners brief . You know, that would make a nice bed for mom yes at the bottom of the lake. This is doing the context of a domestic dispute between, you know, a husband and wife. The mom is splashing water. No more fighting with dad. Under your test koshgs than prosecuted . Because eminem said it at a concert where people are entertained. Its not whether he said it private or on a Facebook Page after receiving protection if abuse order. Its not as though he appropriated a style of wrap that hes been doing previously and th