                 Cite as: 580 U. S. ____ (2017)            1

                   SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES
              ROBERT PEREZ v. FLORIDA
  ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT 

      COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

              No. 16–6250. Decided March 6, 2017

  The petition for a writ of certiorari is denied.
  JUSTICE SOTOMAYOR, concurring in the denial of certiorari.
  Robert Perez is serving more than 15 years in a Florida
prison for what may have been nothing more than a
drunken joke. The road to this unfortunate outcome
began with Perez and his friends drinking a mixture of
vodka and grapefruit juice at the beach. Sentencing Tr.
24, App. to Pet. for Cert. (Sentencing Tr.). As the group
approached a nearby liquor store to purchase additional
ingredients for the mixture, which Perez called a “Molly
cocktail,” ibid., a store employee overheard the group’s
conversation, id., at 25. The employee apparently believed
he was referencing an incendiary “Molotov cocktail” and
asked if it would “burn anything up.” Ibid. Perez claims
he responded that he did not have “that type” of cocktail,
and that the whole group laughed at the apparent joke.
Ibid. Imprudently, however, the inebriated Perez contin-
ued the banter, telling another employee that he had only
“one Molotov cocktail” and could “blow the whole place
up.” App. C to Brief in Opposition 82. Perez later re-
turned to the store and allegedly said, “ ‘I’m going to blow
up this whole [expletive] world.’ ” Id., at 121. Store em-
ployees reported the incident to police the next day. Sen-
tencing Tr. 15, 34.
  The State prosecuted Perez for violating a Florida stat-
ute that makes it a felony “to threaten to throw, project,
place, or discharge any destructive device with intent to do
bodily harm to any person or with intent to do damage to
any property of any person.” Fla. Stat. §790.162 (2007).
2                     PEREZ v. FLORIDA

                   SOTOMAYOR, J., concurring

The trial court instructed the jury that they could return a
guilty verdict if the State proved two elements. First, the
State had to prove the actus reus; that is, the threat itself.
The instruction defined a threat as “a communicated
intent to inflict harm or loss on another when viewed
and/or heard by an ordinary reasonable person.” App. F to
Brief in Opposition 350. Second, the State had to prove
that Perez possessed the necessary mens rea; that is, that
he intended to make the threat. Circularly, the instruc-
tion defined intent as “the stated intent to do bodily harm
to any person or damage to the property of any person.”
Ibid. This instruction permitted the jury to convict Perez
based on what he “stated” alone—irrespective of whether
his words represented a joke, the ramblings of an intoxi-
cated individual, or a credible threat. The jury found
Perez guilty, and because he qualified as a habitual of-
fender, the trial court sentenced him to 15 years and 1 day
in prison. Sentencing Tr. 44.
   In the courts below and in his petition for certiorari,
Perez challenged the instruction primarily on the ground
that it contravenes the traditional rule that criminal
statutes be interpreted to require proof of mens rea, see
Elonis v. United States, 575 U. S. ___, ___–___ (2015) (slip
op., at 9–13). In my view, however, the jury instruction—
and Perez’s conviction—raise serious First Amendment
concerns worthy of this Court’s review. But because the
lower courts did not reach the First Amendment question,
I reluctantly concur in the Court’s denial of certiorari in
this case.
                        *    *    *
  The First Amendment’s protection of speech and expres-
sion does not extend to threats of physical violence. See
R. A. V. v. St. Paul, 505 U. S. 377, 388 (1992). Statutes
criminalizing threatening speech, however, “must be
interpreted with the commands of the First Amendment
                  Cite as: 580 U. S. ____ (2017)              3

                    SOTOMAYOR, J., concurring

clearly in mind” in order to distinguish true threats from
constitutionally protected speech. Watts v. United States,
394 U. S. 705, 707 (1969) ( per curiam). Under our cases,
this distinction turns in part on the speaker’s intent.
   We suggested as much in Watts. There, we faced a
constitutional challenge to a criminal threat statute and
expressed “grave doubts” that the First Amendment per-
mitted a criminal conviction if the speaker merely “uttered
the charged words with an apparent determination to
carry them into execution.” Id., at 708, 707 (emphasis and
internal quotation marks omitted).
   Virginia v. Black, 538 U. S. 343 (2003), made the import
of the speaker’s intent plain. There, we considered a state
statute that criminalized cross burning “ ‘with the intent of
intimidating any person.’ ” Id., at 348 (quoting Va. Code.
Ann. §18.2–423 (1996)). We defined a “true threat” as one
“where the speaker means to communicate a serious ex-
pression of an intent to commit an act of unlawful violence
to a particular individual or group of individuals.” 538
U. S., at 359. We recognized that cross burning is not
always such an expression and held the statute constitu-
tional “insofar as it ban[ned] cross burning with intent to
intimidate.” Id., at 362 (emphasis added); id., at 365
(plurality opinion).
   A four-Member plurality went further and found uncon-
stitutional a provision of the statute that declared the
speech itself “ ‘prima facie evidence of an intent to intimi-
date.’ ” Id., at 363–364. The plurality reached this conclu-
sion because “a burning cross is not always intended to
intimidate.” Id., at 365. Two separate opinions endorsed
this view. See id., at 372 (Scalia, J., joined by THOMAS, J.,
concurring in part, concurring in judgment in part, and
dissenting in part) (“The plurality is correct in all of this”);
id., at 386 (Souter, J., joined by KENNEDY and GINSBURG,
JJ., concurring in judgment in part and dissenting in
part).
4                     PEREZ v. FLORIDA

                   SOTOMAYOR, J., concurring

  Together, Watts and Black make clear that to sustain a
threat conviction without encroaching upon the First
Amendment, States must prove more than the mere ut-
terance of threatening words—some level of intent is
required. And these two cases strongly suggest that it is
not enough that a reasonable person might have under-
stood the words as a threat—a jury must find that the
speaker actually intended to convey a threat.
                         *    *     *
   The jury instruction in this case relieved the State of its
burden of proving anything other than Perez’s “stated” or
“communicated” intent. This replicates the view we
doubted in Watts, which permitted a criminal conviction
based upon threatening words and only “ ‘an apparent
determination to carry them into execution.’ ” 394 U. S., at
707. And like the prima facie provision in Black, the trial
court’s jury instruction “ignore[d] all of the contextual
factors that are necessary to decide whether a particular
[expression] is intended to intimidate.” 538 U. S., at 367
(plurality opinion).
   Context in this case might have made a difference.
Even as she argued for a 15-year sentence, the prosecutor
acknowledged that Perez may have been “just a harmless
drunk guy at the beach,” Sentencing Tr. 35, and it appears
that at least one witness testified that she did not find
Perez threatening, Pet. for Cert. 8. Instead of being in-
structed to weigh this evidence to determine whether
Perez actually intended to convey a threat—or even
whether a reasonable person would have construed Perez’s
words as a threat—the jury was directed to convict solely
on the basis of what Perez “stated.”
   In an appropriate case, the Court should affirm that
“[t]he First Amendment does not permit such a shortcut.”
Black, 538 U. S., at 367 (plurality opinion). The Court
should also decide precisely what level of intent suffices
under the First Amendment—a question we avoided two
Terms ago in Elonis.
