mr. elwood's 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 doesn't negate knowledge. >> i'm still not sure how you answer just scalia's hypothetical and mine. the threat is just repeated. >> let's say the newspaper prints it on the front page. the newspaper is not expressing its intent to -- or making a statement that reflects the speaker's 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 doesn't have that characteristic. that's 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 sp

mr. elwood? >> mr. chief justice, and may it please the court, first amendment prohibits restrictions for a few well-defined, narrowly classes of communication, including what this court has called true threats. >> i'm not sure that the court did either the law or english language much of a good service when it said true threatening. it can mean so many things. that you really intend to carry it out, a. you really intend to intimidate the person or that no one could possibly believe. >> that's true. >> we can't fault you for citing what the premium court said. it's an unhelpful phrase. >> it didn't help that it didn't have the benefit of merits briefing or argument. if you look at the tradition threatening speech was not punchable like common law. until the late 20th century. >> if you threaten somebody with violence and don't actually apply violence, it's still assault, isn't it? >> i think assault is somewhat different. it can also be an attempted battery. it's my understanding there is law that quest

mr. elwood's position would cut out. it would cut out people who are reckless from the people consciously aware this would be taken as a serious expression of intent to do harm and the speakers are entirely disregard. >> how about using that exact and are quite it is standard to what justice breyer had. it's knowledge that a reasonable person would cause fear. you could say it's basically the same thing to say, you know, substantial probability that the person you are talking to would feel fear. so either way, there's a little bit of a fudge factor. the critical point is you have to know something about the probability that you are going to cause fear in another person. and if you really don't know that, then you are not liable. what would be wrong with? >> thursday brought with it if it acyclic immunizes somebody who makes that statement and then can possibly say later i was drunk. i realize i just called in a bomb threat and the police had to respond and an elementary school had to be evacuated. i knew what everything

mr. elwood. >> mr. chief justice and may it please the court. the first amendment permits restriction on the content of speech for a few well-defined, their limited classes of communication clearly supported by history and tradition, cody what this court has called true threats. the government has failed to justify -- >> i'm not sure that the court did either the law or the english language much of a good service when it said true threat. it could mean so me think that it could mean that you really intend to carry it out, you really intend to intimidate the person, or that no one can possibly believe it. so i don't -- >> that's true. >> we can't fault you for siding with the supreme court has said, but it's a most unhelpful phrase. >> and also doesn't help that it was announced in a per curiam decision to didn't have the benefit of merits briefing or argument. but if you look at the tradition, threatening speech was not punishable at common law. and until the late 20th century, american threat statutes required or were interpreted to require pro