mr. elwood would disavow that. he said he has to know that she will be in fear. >> justice ginsburg he didn't disavow it but the time to propose a jury instruction is in the district court not from the podium as the petitioner is arguing the case in the supreme court. now, i agree that this court should decide what the statute means and is properly interpreted and what the fourth amendment required, but there was no request for a knowledge instruction. there was no argue mth that the proper standard is knowledge, let alone recklessness. >> my understanding of the model penal code levels and mens rea is there is a distinction but a razor-thin distinction between purpose and knowledge. so the idea that backing off from purpose to knowledge is going to make very much a practical difference is i think fanciful. there's a considerable difference between -- distance between knowledge and recklessness. would you agree with that? or do i not understand that correct? >> i think you basically understand it correctly. i think

mr. elwood? >> mr. chief justice, and may it please the court. first amendment permits restrictions on the content of speech for a few well-defined narrowly limited classes of communication clearly surmted by history and tradition including what this court has called true threats. the government is -- >> 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 can mean different things. it mean you really intend to carry it out a. you really intend to intimidate the person. or that no one could possibly believe it. so i don't -- >> that's true. >> we can't fault you for citing what the supreme court has said, but it's a mostly unhelpful phrase. >> and it also doesn't help it was announced in a decision that didn't have the benefit of barrett's briefing or argument. but if you look at the tradition, threatening speech was not punishable by common law, and until the late 20th century american threat statutes required, or were interpreted to require proof of a subjective intent to pla