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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 28, 2026
Christopher M. Wolpert
FOR THE TENTH CIRCUIT
Clerk of Court
SINCERE TERRY; MIA HOGSETT;
TYREKE BAKER; PRESTON
NABORS; TREVOUR WEBB;
AUSTIN MACK,
Plaintiffs - Appellants,
v. No. 24-6046
GENTNER DRUMMOND, in his
official capacity as Oklahoma
Attorney General; VICKI
BEHENNA, in her official capacity as
the Oklahoma County District
Attorney,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:22-CV-00521-G)
Devraat Awasthi, American Civil Liberties Union of Oklahoma Foundation, Oklahoma City, Oklahoma (Megan Lambert of American Civil Liberties Union of Oklahoma Foundation, Oklahoma City, Oklahoma and Jared K. Carter, Cornell Law School First Amendment Clinic, Ithaca, New York, with him on the briefs), for Plaintiffs-Appellants.
Cullen D. Sweeney, Assistant Solicitor General (Garry M. Gaskins, II, Solicitor General and Zach West, Director of Special Litigation, with him on the brief), Office of Attorney General, Oklahoma City, Oklahoma, for DefendantsAppellees.
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Before MATHESON, McHUGH, and ROSSMAN, Circuit Judges.
ROSSMAN, Circuit Judge.
In June 2020, a group of activists were prosecuted in Oklahoma state
court for inciting a riot in violation of Oklahoma law. Two years later, those
activists (Plaintiffs) sued the Oklahoma Attorney General and Oklahoma
County District Attorney (Defendants) in their official capacities under 42
U.S.C. § 1983. Their lawsuit challenged Oklahoma Statutes title 21,
section 1311 (Riot Statute) on its face as unconstitutionally overbroad
under the First Amendment and unconstitutionally vague under the
Fourteenth Amendment. The district court denied Plaintiffs’ request for a
preliminary injunction. This appeal followed. Facing issues of first
impression involving Oklahoma criminal law, we certified questions to the
Oklahoma Court of Criminal Appeals (OCCA). 1 This court expresses its
appreciation for the OCCA’s willingness to grant our certification requests.
1 The OCCA is the court of last resort for criminal appeals in Oklahoma.
See OKLA. CONST. art. VII, § 4 (setting out the jurisdiction of the OCCA and Oklahoma Supreme Court); Okla. Call for Reprod. Just. v. Drummond, 2023 OK 24, ¶ 2, 526 P.3d 1123, 1127 n.7 (Okla. 2023) (per curiam) (recognizing the “settled policy of the [Oklahoma] Supreme Court to follow the construction given to criminal statutes by the Criminal Court of Appeals” while acknowledging the Oklahoma Supreme Court’s “supreme and final” authority
2
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Exercising jurisdiction under 28 U.S.C. § 1291, we reject Plaintiffs’
facial challenges to the Riot Statute and affirm.
I
A2
Plaintiffs are young people from Oklahoma City engaged in local
activism. In the spring and summer of 2020, following the police killing of
George Floyd in Minnesota, Plaintiffs participated in nightly racial-justice
protests outside the headquarters of the Oklahoma City Police Department
(OCPD) in downtown Oklahoma City. During those protests, Plaintiffs and
others began planning a mural outside OCPD headquarters. The mural,
designed by a local artist, would depict “a series of flags honoring Black
Lives and symbolizing solidarity, community, and shared struggles,
including the Black Liberation Flag, Native American Flag, and the
Rainbow Pride Flag.” RI.23–24. On June 22, 2020, a protester obtained a
permit to paint the mural, and city employees set up traffic barricades to
block off space for painters to work.
over statutory construction (first quoting State ex rel. Ikard v. Russell, 124 P. 1092, 1093 (Okla. 1912); then quoting Ex parte Meek, 25 P.2d 54, 55 (Okla. 1933))); see also, e.g., Wolf v. State, 2012 OK CR 16, ¶ 11, 292 P.3d 512, 516 (Okla. Crim. App. 2012) (discussing cases in which the OCCA construed criminal statutes with respect to a scienter element).
2We draw the facts in this opinion from Plaintiffs’ complaint, their motion for a preliminary injunction, and our previous orders in this appeal.
3
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Around 2:30 p.m. on June 23, an OCPD officer moved a traffic
barricade near the muralists to access the area with his vehicle. Plaintiffs
approached his patrol car and yelled, “Fuck the police!”, “We have a
permit!”, “This is a city ordinance!”, and “Hit me if you want to!” RI.25, 59.
The officer reversed his patrol car, turned around, and drove away.
Plaintiffs then “ran after the cruiser for a few seconds but did not impede
its path out.” RI.25. The muralists continued painting without incident.
A few days later, on June 26, prosecutors charged Plaintiffs in
Oklahoma County court with felony incitement to riot, in violation of
Oklahoma Statutes title 21, § 1320.2. 3 The charging information alleged
Plaintiffs, “acting together,” had “surrounded [a] . . . marked patrol vehicle”
driven by an officer transporting a homicide witness to OCPD headquarters
“and confined [the officer] for a period of time while the defendants yelled
threats and expletives[.]” 4 RI.86. Plaintiffs Sincere Terry, Mia Hogsett,
3 The incitement to riot statute, OKLA. STAT. tit. 21, § 1320.2, uses the
statutory definition of “riot” from § 1311. See OKLA. STAT. tit. 21, § 1320.1 (incorporating § 1311’s definition of “riot”). The parties do not identify any differences between §§ 1311 and 1320.2 that bear on this appeal, which centers on the constitutionality of § 1311.
4 The charging information stated, in full:
On or about the 31st day of May 2020, the crime of INCITEMENT
TO RIOT was feloniously committed in Oklahoma County,
Oklahoma, by [Plaintiffs] who, acting together, surrounded
Oklahoma City Police Sgt. Wald’s marked patrol vehicle while Sgt.
Wald was transporting a homicide witness to the Oklahoma City
4
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Tyreke Baker, Preston Nabors, and Trevour Webb eventually pleaded guilty
to misdemeanor charges. 5
B
1
On June 23, 2022, Plaintiffs brought a lawsuit under 42 U.S.C. § 1983
in federal district court against the Oklahoma Attorney General and the
Oklahoma County District Attorney in their official capacities. Their
complaint facially challenged the constitutionality of the Riot Statute,
OKLA. STAT. tit. 21, § 1311, and sought declaratory and injunctive relief.
The Riot Statute states: “Any use of force or violence, or any threat to use
force or violence if accompanied by immediate power of execution, by three
Police Department, and confined him for a period of time while the
defendants yelled threats and expletives at Sgt. Wald in an effort
to obstruct Sgt. Wald, who was acting in the performance of his
official duties as an Oklahoma City Police Officer, contrary to the
provisions of Section 1320.2 of Title 21 of the Oklahoma Statutes
and against the peace and dignity of the State of Oklahoma.
RI.86. Although the charging document alleged the events at issue occurred on or near May 31, 2020, the parties and district court seem to have understood the referenced conduct as taking place in June 2020. Any discrepancy between these dates is not at issue here.
5 Plaintiffs Terry, Hogsett, Baker, Nabors, and Webb pleaded guilty
to a lesser charge of misdemeanor obstruction of an officer. Plaintiff Hogsett also pleaded guilty to a charge of misdemeanor threatening to perform an act of violence. The warrant against Plaintiff Austin Mack was recalled after he showed law enforcement “he was not present during the mural incident[.]” RI.33.
5
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or more persons acting together and without authority of law, is riot.” OKLA.
STAT. tit. 21, § 1311.
The complaint stated two counts. In count one, Plaintiffs claimed the
Riot Statute is unconstitutionally overbroad in violation of the First
Amendment. See RI.41 (citing Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973)). In count two, Plaintiffs claimed the Riot Statute is
unconstitutionally vague in violation of the Due Process Clause of the
Fourteenth Amendment.
Plaintiffs also moved for a preliminary injunction against the
enforcement of the Riot Statute. 6 They acknowledged their burden to satisfy
the four preliminary-injunction factors. This appeal turns on the first
factor: whether Plaintiffs have demonstrated “a substantial likelihood that
they will ultimately succeed on the merits of their suit[.]” Rocky Mountain
Gun Owners v. Polis, 121 F.4th 96, 112 (10th Cir. 2024) (citing Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
Plaintiffs argued they could show a substantial likelihood of success
on both facial challenges. As to overbreadth, Plaintiffs began by asserting
6 The motion for a preliminary injunction was based on the allegations
in Plaintiffs’ complaint as well as several attachments—affidavits and arrest warrant applications from the arresting officer, and declarations from all six Plaintiffs. The record shows a status conference was held on March 23, 2023. But the record contains nothing to suggest the court held an evidentiary hearing on the motion, and the parties on appeal do not reference any hearing.
6
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“[n]early all speech is protected by the First Amendment,” but one “narrow
exception is true threats.” RI.61 (citing Virginia v. Black, 538 U.S. 343, 344
(2003)). A true threat, Plaintiffs explained, is “a serious expression of an
intent to commit an act of unlawful violence to a particular individual or
group[.]” RI.61 (quoting Black, 538 U.S. at 344). In Plaintiffs’ view, a
prosecution for a “true threat” requires the State to “consider the mental
state of the speaker” and prove “the speaker intend[ed] to intimidate the
target of the threat.” RI.61. Plaintiffs argued the Riot Statute violated this
requirement, because the law does not “include an intent element.” RI.64.
With no mens rea requirement in the statute, “Section 21-1311 criminalizes
any threat”—“includ[ing] protected expressive activity such as political
hyperbole”—and not just “true” threats uttered by someone who in fact
intended to threaten. RI.65. “As a result of the statute’s overbreadth,”
Plaintiffs said, “speakers at demonstrations have and will restrict their
speech, avoiding even constitutionally protected political hyperbole, for fear
of prosecution under Section 21-1311.” RI.68 n.5.
As to vagueness, Plaintiffs explained “void-for-vagueness doctrine
requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” RI.69 (quoting United States v. Hunter, 663
7
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F.3d 1136, 1141 (10th Cir. 2011)). Plaintiffs argued the Riot Statute “must
be found void for vagueness” because it “does not include a mens rea
requirement for a person to be held criminally liable for participating in a
riot.” RI.70. The lack of a mens rea requirement “means the statute does not
provide clear notice to the ordinary Oklahoma citizen as to the difference
between standing peacefully on the street in a protest that happens to turn
violent due to other malicious actors and actually being the actor who
throws a Molotov cocktail or smashes a car.” RI.70. Defendants opposed the
motion, arguing Plaintiffs are unlikely to succeed on the merits.
2
The district court denied the preliminary injunction request in a
written order. Because Plaintiffs sought “a disfavored injunction” against
“enforcement of a state law that has been on the books for over 100 years[,]”
the district court ruled Plaintiffs faced a “heightened standard” on their
motion, requiring “a strong showing” on the likelihood-of-success factor.
RIII.312–13 (quoting Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d
1221, 1232 (10th Cir. 2019)). The district court then “construe[d]” the Riot
Statute, observing “it is impossible to determine whether a statute reaches
too far without first knowing what the statute covers.” RIII.313 (quoting
United States v. Williams, 553 U.S. 285, 293 (2008)). The court
acknowledged “state courts are the final arbiters of state law.” RIII.314
8
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(quoting United States v. DeGasso, 369 F.3d 1139, 1145 (10th Cir. 2004)).
But when no controlling state law exists, the district court explained, “the
federal court must attempt to predict what the state’s highest court would
do.” RIII.314 (quoting DeGasso, 369 F.3d at 1145). Mindful of these
principles, the district court recognized it was “without power to adopt a
narrowing construction of a state statute unless such a construction is
reasonable and readily apparent.” RIII.314 (quoting Stenberg v. Carhart,
530 U.S. 914, 944 (2000)).
The district court discerned a “reasonable and readily apparent”
construction of the Riot Statute in Oklahoma law. Relying on Crawford v.
Ferguson, the district court observed the OCCA, more than a century
earlier, held that “to be guilty of riot, three or more persons acting together
must ‘seek to accomplish any unlawful purpose.’” RIII.316 (quoting
Crawford v. Ferguson, 115 P. 278, 279 (Okla. Crim. App. 1911)). Then
relying on Casteel v. State, the district court recognized the OCCA required
the charging document for riot under § 1311’s predecessor statute to allege
defendants “acted together willfully and with a common intent to use force
or violence.” RIII.317 (citing Casteel v. State, 161 P. 330, 330 (Okla. Crim.
App. 1916)). Accordingly, the district court concluded the OCCA “has
interpreted section 1311 to require elements regarding intent that are not
9
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expressly stated in the statute.” RIII.316. Putting those elements together,
the district court arrived at the following construction of the Riot Statute:
Any use of force or violence, or any threat to use force or violence
if accompanied by immediate power of execution, by three or
more persons acting together, willfully, without authority of
law, and sharing a common intent to use force or violence or to
unlawfully threaten to use force or violence.
RIII.318 (emphasis added to reflect the district court’s narrowing language
not originally found in the text of the statute).
In the district court’s view, its construction of the Riot Statute
comported with Oklahoma law and with Counterman v. Colorado, 600 U.S.
66 (2023), which issued after the parties had briefed the preliminaryinjunction motion. 7 In Counterman, the Supreme Court held “the State
must prove in true-threats cases that the defendant had some
understanding of his statements’ threatening character[,]” and the “precise
mens rea standard” sufficient for First Amendment purposes is
recklessness. 600 U.S. at 73. “A person acts recklessly, in the most common
formulation, when he ‘consciously disregard[s] a substantial [and
unjustifiable] risk that the conduct will cause harm to another.’” Id. at 79
(alterations in original) (quoting Voisine v. United States, 579 U.S. 686, 691
7 Plaintiffs filed a notice of supplemental authority alerting the district
court to Counterman, contending the decision “is relevant to [their] overbreadth claim under the First Amendment.” RIII.291.
10
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(2016)); see id. (holding, in the language of true threats, recklessness
“means that a speaker is aware that others could regard his statements as
threatening violence and delivers them anyway” (internal quotation marks
omitted)).
The district court found Plaintiffs failed to make a “strong showing of
a likelihood of success on the merits” on either of their facial constitutional
challenges. RIII.325. As to overbreadth, the court concluded Plaintiffs had
failed to show “section 1311 criminalizes a substantial amount of protected
speech.” RIII.321. Although Plaintiffs had offered various hypotheticals
ostensibly showing the Riot Statute’s overbreadth, the district court
concluded none “would constitute actionable riot under section 1311.”
RIII.319. As to vagueness, the district court rejected Plaintiffs’ argument
that the Riot Statute lacked a mens rea. As construed by the district court,
the statute’s mens rea of “willfully” and its three-or-more-people and
common-intent elements limit the scope of possible prosecutions and
“provide sufficient notice to peaceful protesters as to what conduct
constitutes riot under section 1311.” RIII.323. Because Plaintiffs could not
meet the likelihood-of-success factor, the district court declined to address
the other preliminary-injunction factors and denied the motion.
11
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This timely appeal followed. 8
II
A
Plaintiffs ask us to reverse the district court’s order denying their
motion for a preliminary injunction. “A preliminary injunction is an
extraordinary remedy, the exception rather than the rule.” United States ex
rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt.
Consultants, Inc., 883 F.2d 886, 888 (10th Cir. 1989). To prevail on a
preliminary injunction motion, the moving party must prove “(1) that she’s
substantially likely to succeed on the merits, (2) that she’ll suffer
irreparable injury if the court denies the injunction, (3) that her threatened
injury (without the injunction) outweighs the opposing party’s under the
injunction, and (4) that the injunction isn’t adverse to the public interest.”
Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 797 (10th
Cir. 2019) (internal quotation marks omitted).
8 Together with their opening brief, Plaintiffs filed a motion asking us to
certify to the OCCA whether the Riot Statute “require[s] that the State prove that the defendant consciously disregarded a substantial risk that their communications would be viewed as threatening violence toward another in order to convict a defendant for threats constituting riot[.]” Dkt. No. 22, at 1. We granted the motion but reformulated the questions for certification, as we will discuss.
12
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“An injunction can issue only if each factor is established.” Denver
Homeless Out Loud v. Denver, 32 F.4th 1259, 1277 (10th Cir. 2022) (citing
Winter, 555 U.S. at 23–24). Where, as here, “a party seeks a preliminary
injunction on the basis of a potential constitutional violation, the likelihood
of success on the merits often will be the determinative factor.” Obama for
Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (internal quotation marks
omitted); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145
(10th Cir. 2013) (noting that “in First Amendment cases, the likelihood of
success on the merits will often be the determinative factor” (quoting ACLU
of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012))). If a requested
injunction would “change[] the status quo,” the preliminary injunction
motion is “disfavored,” and “the moving party faces a heavier burden on the
likelihood-of-success-on-the-merits and the balance-of-harms factors[.]”
Free the Nipple-Fort Collins, 916 F.3d at 797. To prevail, the movant thus
“must make a strong showing that these [factors] tilt in her favor.” Id.
(internal quotation marks omitted). The parties agree Plaintiffs seek a
disfavored injunction and must satisfy a “heavier burden[.]” Id.
“District courts have discretion over whether to grant preliminary
injunctions, and we will disturb their decisions only if they abuse that
discretion.” Courthouse News Serv. v. N.M. Admin. Off. of Cts., 53 F.4th
1245, 1254 (10th Cir. 2022) (internal quotation marks omitted). “A district
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court’s decision crosses the abuse-of-discretion line if it rests on an
erroneous legal conclusion or lacks a rational basis in the record.” Id.
(internal quotation marks omitted). “In reviewing a district court’s decision
to grant or deny a preliminary injunction, we thus examine the court’s
factual findings for clear error and its legal conclusions de novo.” Id. at
1254–55 (internal quotation marks omitted).
On appeal, Plaintiffs insist the district court erroneously concluded
they failed to show a substantial likelihood of success on the merits of their
facial constitutional challenges to the Riot Statute. This appeal, therefore,
presents two issues. First, is the Riot Statute unconstitutionally overbroad
under the First Amendment? Second, is the Riot Statute unconstitutionally
vague under the Fourteenth Amendment? In light of the parties’ briefing,
the record on appeal, and oral argument, the resolution of these issues
narrowed further: What mens rea—if any—does the Riot Statute require?
We determined that neither the statute’s text nor existing Oklahoma law
settled this question.
We then twice certified questions to the OCCA. Granting our requests,
the OCCA twice provided answers about Oklahoma criminal law. See Terry
v. Drummond (Terry I), 2025 OK CR 11, ¶¶ 1–2 (Okla. Crim. App. 2025)
(answering initial question); Terry v. Drummond (Terry II), 2026 OK CR 10,
¶ 18 (Okla. Crim. App. 2026) (answering second set of questions). The
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certification proceedings, and the OCCA’s two opinions issued in response
to the certification requests, figure prominently in this appeal. So do the
parties’ arguments about Counterman, 600 U.S. 66 (2023).
B
On March 3, 2025, we certified the following question to the OCCA:
“Does . . . § 1311 require the State to prove the defendant consciously
disregarded a substantial risk that his communications would be viewed as
threatening violence toward another to convict for threats constituting
riot?” Terry v. Drummond, 2025 WL 707451, at *10 (10th Cir. Mar. 3, 2025)
(unpublished).
On July 17, 2025, the OCCA unanimously answered the certified
question “in the negative” and stated its reasoning in a short opinion.
Terry I, 2025 OK CR 11, ¶¶ 2, 8. The OCCA summed up its “hold[ing]”:
“[T]he State in a charge of riot must prove the defendant’s mutual or
common intent with two or more others to use or threaten violence,
accompanied by an immediate power to carry the threat into being.” Id. at
¶ 9. The OCCA determined the Riot Statute lacks the Counterman-required
recklessness element but insisted that omission creates no constitutional
problem. Endorsing the district court’s understanding of the Riot Statute,
the OCCA found “the combined factual elements of a mutual or common
intent to use or threaten violence, and that the violent threats be
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‘accompanied by immediate power of execution,’ substantially produce the
same effect” as the reckless-subjective-intent element announced in
Counterman. Id. at ¶ 8 (quoting OKLA. STAT. tit. 21, § 1311). “In this way,”
the OCCA reasoned, “the statute precludes punishment for mere hyperbole,
idle threats, angry bluster, or lawful protest.” Id. at ¶ 9. Notably, the OCCA
did not mention “recklessness,” subjective intent, or Counterman. Its
“hold[ing]” also did not speak in terms of “willfulness.” 9
On October 24, 2025, we certified more questions to the OCCA. We
undertook this additional request “cautiously, careful not to ‘trouble our
sister state courts every time an arguably unsettled question of state law
comes across our desks.’” Terry v. Drummond, 2025 WL 3012448, at *1 (10th
Cir. Oct. 24, 2025) (unpublished) (quoting Pino v. United States, 507 F.3d
1233, 1236 (10th Cir. 2007)). But after “careful consideration” of Terry I,
“additional questions of state law—both identified in the original
9 In a special concurrence joined by one other judge, Judge Rowland “agree[d] that the certified question should be answered in the negative because Oklahoma’s riot statute requires both the mens rea of willfulness and a common criminal intent among rioters which satisfies Counterman’s subjective intent requirement.” Terry I, 2025 OK CR 11, ¶ 7 (Rowland, J., concurring). According to Judge Rowland, the Riot Statute’s willfulness mens rea and the “additional elements” of “three or more persons” and “immediate power to carry out th[e] threats” together “sufficiently narrow [§ 1311’s] application to avoid First Amendment concerns in a riot prosecution based upon threats alone.” Id. at ¶ 5. The Riot Statute thus “does not reach mere advocacy which is protected speech[.]” Id. at ¶ 6.
16
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certification order and key to the resolution of this appeal—remain
outstanding.” Id. Specifically, we sought to understand the meaning of
“willfulness” under Oklahoma criminal law. 10 See id.
10 The four questions were, in full:
1. If § 1311 does require the State in a threats prosecution to prove
a defendant had a mens rea of willfulness, see 2025 OK CR 11,
¶¶ 6–7, does “willfulness” mean that, under Oklahoma law, a
defendant must have at least “consciously disregard[ed] a
substantial and unjustifiable risk” that “others could regard his
statements as threatening violence”? See Counterman v.
Colorado, 600 U.S. 66, 78–82 (2023).
2. The OCCA’s opinion states “the crime of riot . . . relates to and
prohibits certain defined conduct rather than forms of
expression.” 2025 OK CR 11, ¶ 10 (quoting State v. Bad Heart
Bull, 257 N.W.2d 715, 722 (S.D. 1977)). Does this mean § 1311
does not cover speech at all?
3. Does “any threat to use force or violence” in § 1311 cover only
“true threats”? True threats are “statements where the speaker
means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual or
group of individuals.” Virginia v. Black, 538 U.S. 343, 359
(2003).
4. The OCCA’s opinion states that § 1311 requires “mutual or
common intent” along with “immediate power of execution,”
which together “substantially produce the same effect” as
requiring proof a defendant “consciously disregarded a
substantial risk.” 2025 OK CR 11, ¶ 8. How do these other
requirements satisfy Counterman’s mandate that the State in
a threats prosecution must prove a defendant’s subjective
intent of recklessness?
Terry, 2025 WL 3012448, at *1–2 (alterations in original) (footnote omitted).
17
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On March 5, 2026, the OCCA answered our additional questions in
another opinion. 11 See Terry II, 2026 OK CR 10, ¶ 18. The OCCA “explicitly
adopt[ed] the definition of willfulness” in Oklahoma Statutes title 21,
section 92 “as the willfulness required under state law for a threat-based
violation of” the Riot Statute. Terry II, 2026 OK CR 10, at ¶ 7. That is, the
OCCA made clear a threat-based prosecution under the Riot Statute
requires “a purpose or willingness to commit the act or the omission referred
to. It does not require any intent to violate law, or to injure another, or to
acquire any advantage.” Id. (quoting OKLA. STAT. tit. 21, § 92). The OCCA
elaborated that “willfulness” under § 92 means “‘intentionally,’ ‘designedly,’
‘without lawful excuse’—that is, not accidentally.” Id. at ¶ 15 (quoting
Miller v. State, 130 P. 813, 815 (Okla. Crim. App. 1913)). In the OCCA’s
view, the mens rea of willfulness, combined with the other elements of the
Riot Statute, means a defendant convicted of riot “has at least acted with
the type of recklessness required by Counterman[.]” Id. at ¶ 17 (emphasis
added). 12
11 The parties filed supplemental briefs on May 18, 2026, addressing
Terry II.
12 Judge Lewis, who authored Terry I, wrote separately to dissent in part.
Terry II, 2026 OK CR 10, ¶ 1 (Lewis, J., concurring in part and dissenting in part). Judge Lewis ultimately viewed the Riot Statute as constitutional—but only because, in his view, its “willfulness” mens rea “require[s] proof that defendants making the threat consciously disregarded a substantial and
18
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With the benefit of the OCCA’s interpretation of Oklahoma criminal
law, we turn now to the federal constitutional issues and arguments before
us and explain why affirmance is required. 13
III
“We review challenges to the constitutionality of a statute de novo.”
United States v. Harrison, 153 F.4th 998, 1009 (10th Cir. 2025) (internal
quotation marks omitted). We start with overbreadth, then turn to
vagueness. 14
unjustifiable risk that others could regard the statement as threatening force or violence.” Id. at ¶ 5.
13 The two opinions on certification could raise a question as to how we
should read any inconsistencies between them. For the most part, the OCCA’s two opinions are reconcilable. But see Terry II, 2026 OK CR 10, ¶¶ 2–3 & n.1 (Lewis, J., concurring in part and dissenting in part) (suggesting differences). To the extent inconsistencies may exist, the OCCA appears to follow a last-intime approach to resolving conflicts between its own decisions. See Roe v. State, 191 P. 1048, 1052 (Okla. Crim. App. 1920) (“[I]f there is any apparent conflict between these decisions, and the earlier decisions of this court upon the same subject, the later opinions are controlling, and must be held and construed to overrule the doctrine announced or the rule laid down to the contrary if any[.]”). For purposes of this opinion, we rely primarily on Terry II.
14 In their initial response brief on appeal, Defendants argued Plaintiffs
lack standing to pursue their constitutional challenges, but we rejected that argument in our first certification order. See Terry, 2025 WL 707451, at *5 n.6 (“[W]e have no trouble concluding [Plaintiffs] have shown an injury in fact for the purpose of demonstrating Article III standing to assert their preenforcement First Amendment challenge.”). Since then, Defendants have not pressed any standing-based argument in this appeal. We readopt our earlier conclusion that Plaintiffs have established standing to pursue their constitutional claims.
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A
“The First Amendment, applicable to the States through the
Fourteenth Amendment, prohibits the enactment of laws ‘abridging the
freedom of speech.’” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)
(quoting U.S. Const. amend. I). “It has long been recognized that the First
Amendment needs breathing space and that statutes attempting to restrict
or burden the exercise of First Amendment rights must be narrowly
drawn[.]” Broadrick, 413 U.S. at 611. “Overbroad laws ‘may deter or “chill”
constitutionally protected speech,’ and if would-be speakers remain silent,
society will lose their contributions to the ‘marketplace of ideas.’” United
States v. Hansen, 599 U.S. 762, 769–70 (2023) (quoting Virginia v. Hicks,
539 U.S. 113, 119 (2003)).
“To guard against those harms, the overbreadth doctrine allows a
litigant (even an undeserving one) to vindicate the rights of the silenced, as
well as society’s broader interest in hearing them speak.” Id. at 770. “[T]he
overbreadth doctrine instructs a court to hold a statute facially
unconstitutional even though it has lawful applications, and even at the
behest of someone to whom the statute can be lawfully applied.” Id. at 769.
“Invalidation for overbreadth is strong medicine that is not to be casually
employed.” Williams, 553 U.S. at 293 (internal quotation marks omitted);
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see also Hansen, 599 U.S. at 769 (calling an overbreadth challenge
“unusual”).
“The overbreadth analysis has two steps.” United States v. Streett, 83
F.4th 842, 852 (10th Cir. 2023). “The first step ‘is to construe the challenged
statute’ to determine whether it covers protected speech.” Id. (quoting
Williams, 553 U.S. at 293). This first step proceeds from the common-sense
premise that a court must “determine what [the law] covers” before it “can
do anything else with these facial challenges[.]” Moody v. NetChoice, LLC,
603 U.S. 707, 725 (2024) (first alteration in original) (quoting Hansen, 599
U.S. at 770).
The second step is “to determine whether the unconstitutional
applications of the statute are ‘substantially disproportionate to the
statute’s lawful sweep.’” Streett, 83 F.4th at 852 (quoting Hansen, 599 U.S.
at 770). “For the statute to be unconstitutionally overbroad, its
‘unconstitutional applications must be realistic, not fanciful[.]’” Id. at 853
(quoting Hansen, 599 U.S. at 770); see also Members of City Council of L.A.
v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984) (“[T]here must be a
realistic danger that the statute itself will significantly compromise
recognized First Amendment protections of parties not before the Court for
it to be facially challenged on overbreadth grounds.”). A “lopsided ratio” of
unconstitutional applications to constitutional ones suggests impermissible
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overbreadth. Hansen, 599 U.S. at 770. The upshot is, in this “singular
context, even a law with ‘a plainly legitimate sweep’ may be struck down in
its entirety. But that is so only if the law’s unconstitutional applications
substantially outweigh its constitutional ones.” Moody, 603 U.S. at 723–24
(emphasis added). “The overbreadth claimant bears the burden of
demonstrating, ‘from the text of [the law] and from actual fact,’ that
substantial overbreadth exists.” Hicks, 539 U.S. at 122 (alteration in
original) (quoting N.Y. State Club Ass’n, Inc. v. City of New York, 487 U.S.
1, 14 (1988)).
B
Plaintiffs contend the Riot Statute, on its face, is unconstitutionally
overbroad under the First Amendment. We must disagree.
The first step of the overbreadth inquiry requires us to construe the
Riot Statute. See Streett, 83 F.4th at 852. Before the OCCA answered our
certified questions, it was unclear whether the Riot Statute had any intent
requirement. Now, it is undisputed that, under Oklahoma law, the Riot
Statute requires the State to prove “the defendant’s mutual or common
intent [of willfulness] with two or more others to use or threaten violence,
accompanied by an immediate power to carry the threat into being.” Terry I,
2025 OK CR 11, ¶ 9; see also Terry II, 2026 OK CR 10, ¶ 18 (clarifying the
mens rea under § 1311 is “willfully”); Aplt. Second Supp. Br. at 11–14
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(discussing Terry II’s construction of the Riot Statute); Aple. Second Supp.
Br. at 1 (similar). “As Oklahoma’s court of last resort for criminal appeals,
the OCCA’s interpretation of state law is controlling.” United States v.
Faulkner, 950 F.3d 670, 677 n.8 (10th Cir. 2019); accord Hawkins v. Mullin,
291 F.3d 658, 662 (10th Cir. 2002) (recognizing “this court is bound by the
[OCCA]’s interpretation of its own law”); see Johnson v. Fankell, 520 U.S.
911, 916 (1997) (“Neither [the Supreme] Court nor any other federal
tribunal has any authority to place a construction on a state statute
different from the one rendered by the highest court of the State.”).
At the second step of the overbreadth inquiry, Plaintiffs insist that,
even as construed by the OCCA, the Riot Statute is “categorically
overbroad.” Aplt. Second Supp. Br. at 3. In Plaintiffs’ view, willfulness “falls
far short” of Counterman’s recklessness standard. Aplt. Second Supp. Br. at
12. Plaintiffs assert willfulness “merely requires that the defendant
voluntarily speaks[,]” Aplt. Second Supp. Br. at 13, whereas the
Counterman standard requires the defendant “consciously disregarded a
substantial risk that his communications would be viewed as threatening
violence[,]” Counterman, 600 U.S. at 69. That the Riot Statute’s mens rea
fails to satisfy the Counterman recklessness standard, Plaintiffs say,
reveals its impermissible overbreadth: The statute “lack[s] a
constitutionally required element” and so is “invalid in all applications.”
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Aplt. First Supp. Br. at 4. In the language of overbreadth doctrine, the Riot
Statute has no “plainly legitimate sweep.”
To support their overbreadth argument, Plaintiffs offer two
hypotheticals. First, Plaintiffs imagine a football game between the
University of Mississippi and the University of Oklahoma. If fans chant,
“we’re gonna beat the hell out of you!”, Plaintiffs claim those fans “could be
prosecuted for a felony under Section 1311 for participating in protected
speech.” Op. Br. at 26–27. Second, Plaintiffs conjure a group of protesters
who agree to chant “fight back” in a demonstration against government
overreach. Plaintiffs maintain the protesters could be prosecuted under the
Riot Statute due to their “immediate power to execute on their threat to
‘fight back.’” Aplt. First Supp. Br. at 12. According to Plaintiffs, these
hypotheticals reveal the Riot Statute’s overbreadth: “Section 1311 plainly
reaches a substantial amount of protected expression.” Op. Br. at 27; Aplt.
First Supp. Br. at 12–13.
Plaintiffs have not carried their burden to establish overbreadth. At
the second step of the inquiry, a challenger must show a law’s
unconstitutional applications are “substantially disproportionate to the
statute’s lawful sweep.” Hansen, 599 U.S. at 770 (emphasis added). This
requires a court to assess a law’s unconstitutional uses and compare them
to its “valid reach.” Id. at 782. But Plaintiffs offer no plausible examples of
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the Riot Statute’s unconstitutional applications and fail to accurately
account for its “lawful sweep.” Id. at 770.
We start by appraising the unconstitutional-applications side of the
ledger. Based on Plaintiffs’ arguments in this appeal, “we find it pretty
much blank.” Id. at 782. Plaintiffs speculate about prosecutions of football
fans taunting their opponents and political protesters yelling generic
slogans at demonstrations. But Plaintiffs have not identified any “realworld” examples of improper threats prosecutions in the Riot Statute’s 116-year life. 15 United States v. Brune, 767 F.3d 1009, 1021 (10th Cir. 2014)
15 Even if Plaintiffs’ hypotheticals were sufficiently realistic, we would
nonetheless find they miss the mark. As the district court recognized, it is far from clear the Riot Statute criminalizes anything contained in Plaintiffs’ hypotheticals. Without more, we see no “threat to use force or violence,” OKLA. STAT. tit. 21, § 1311, when a scrum of football fans yells “we’re gonna beat the hell out of you!” or when political protesters chant “fight back.” Op. Br. at 26; Aplt. First Supp. Br. at 12. Plaintiffs acknowledge that “proscribable threats” require the State to prove “an objective component—the substantial risk that the speech would be viewed as threatening violence.” Op. Br. at 30 (citing United States v. Hunt, 82 F.4th 129, 134–35 (2d Cir. 2023)); see also Counterman, 600 U.S. at 72 (explaining “a statement can count as . . . a threat based solely on its objective content”); United States v. Dillard, 795 F.3d 1191, 1199 (10th Cir. 2015) (“We apply an objective test to determine whether the speaker made a true threat[.]”). In other words, Plaintiffs say, the State must prove “the speech is reasonably and objectively understood as a threat.” Op. Br. at 31 (emphasis added) (citing United States v. Parr, 545 F.3d 491 (7th Cir. 2008)). Although we could imagine some factual elaboration that might nudge Plaintiffs’ hypotheticals over the line from bluster to threat, we express doubt that “a reasonable person, under the circumstances, would interpret the speaker’s statement as a threat” in either of the scenarios Plaintiffs describe. Parr, 545 F.3d at 500; see also Watts v. United States, 394 U.S. 705, 708 (1969)
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(internal quotation marks omitted) (rejecting an overbreadth challenge); see
Hansen, 599 U.S. at 782 (faulting the challenger for “fail[ing] to identify a
single prosecution for ostensibly protected expression” in the seven decades
since Congress enacted the law at issue).
Plaintiffs insist they “need not identify specific historical examples or
even particularly credible forecasts of overbroad applications to prevail on
their substantial overbreadth claim.” Aplt. First Supp. Br. at 13 n.7. That
position misunderstands what the law requires. See Hansen, 599 U.S. at
770 (requiring a First Amendment facial challenge to show unconstitutional
applications that are “realistic, not fanciful”); Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 450–51 (2008) (instructing courts not
to “go beyond the statute’s facial requirements and speculate about
‘hypothetical’ or ‘imaginary’ cases”); Williams, 553 U.S. at 301 (rejecting “an
endless stream of fanciful hypotheticals”). Speculation will not satisfy the
challenger’s burden on overbreadth. See Hicks, 539 U.S. at 122 (“The
overbreadth claimant bears the burden of demonstrating, ‘from the text of
[the law] and from actual fact,’ that substantial overbreadth exists.”
(alteration in original) (emphasis added) (quoting N.Y. State Club Ass’n, 487
U.S. at 14)); e.g., Streett, 83 F.4th at 855 (finding challenger “failed to
(per curiam) (“Taken in context, . . . we do not see how it could be interpreted otherwise.”).
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demonstrate as a matter of ‘actual fact’ that there [were] a substantial
number of . . . potentially unconstitutional applications” of the statute at
issue (quoting Hicks, 539 U.S. at 122)); United States v. Ostrander, 114
F.4th 1348, 1362–63 (11th Cir. 2024) (holding an overbreadth challenger
“has not come close to meeting his burden of proving a realistic danger”
because, even if the challenger showed “overbreadth from the text of the
law,” he still “has failed to do so in actual fact” (brackets and internal
quotation marks omitted)).
To be sure, Plaintiffs suggest their own prosecutions show the
overbreadth of the Riot Statute. We acknowledge the facts of an instant case
can provide a meaningful data point as to overbreadth. But absent a
considerable imbalance between valid and invalid uses, “courts must handle
unconstitutional applications as they usually do—case-by-case.” Hansen,
599 U.S. at 770. Based on the allegations and arguments before us, we
cannot conclude the record suffices to establish “substantial” overbreadth.
Moody, 603 U.S. at 718. Plaintiffs have not shown the Riot Statute has “any
realistic danger of chilling the expression of parties not before the court[.]”
Faustin v. City & County of Denver, 423 F.3d 1192, 1201 (10th Cir. 2005).
On the “legitimate sweep” side of the ledger, Plaintiffs’ challenge fares
no better. Even if Plaintiffs had made a strong showing of plausible
constitutional danger, they would also need to show that danger is
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“substantial, not only in an absolute sense, but also relative to the statute’s
plainly legitimate sweep.” Williams, 553 U.S. at 292 (explaining this
requirement has been “vigorously enforced” by the Court). “The ‘mere fact
that one can conceive of some impermissible applications of a statute is not
sufficient to render it susceptible to an overbreadth challenge.’” Id. at 303
(quoting Taxpayers for Vincent, 466 U.S. at 800). Here, Plaintiffs too-readily
dismiss this aspect of their burden on overbreadth.
The text of the Riot Statute plainly shows some prosecutions will not
involve speech at all. 16 See OKLA. STAT. tit. 21, § 1311 (criminalizing “[a]ny
use of force or violence, or any threat to use force or violence if accompanied
by immediate power of execution, by three or more persons acting together
and without authority of law” (emphasis added)); Okla. Unif. Jury
Instructions-Crim. 6-58 (2d ed.) (stating the elements of riot under § 1311
can be shown by “(use of force)/violence . . . OR . . . a threat to use
force/violence” (bolding omitted)). Riot prosecutions for constitutionally
unprotected conduct are neither hard to imagine nor hard to find. See, e.g.,
Schoolcraft v. State, 178 P.2d 641, 643–45, 651 (Okla. Crim. App. 1947)
16 Importantly, Plaintiffs’ facial challenge is not limited to the threats
provision of the Riot Statute. We therefore consider the entire statute in evaluating its legitimate sweep. See Margolin v. Nat’l Ass’n of Immigr. Judges, 146 S. Ct. 1285, 1288 (2026) (per curiam) (explaining “the principle of party presentation” means federal courts must “rely on the parties to frame the issues for decision” (internal quotation marks omitted)).
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(affirming the riot convictions of four individuals who terrorized several
locations and violently attacked at least seven victims, some fatally);
Perkins v. State, 250 P. 544, 544–45, 548 (Okla. Crim. App. 1926) (affirming
riot convictions of Ku Klux Klan members who violently whipped a man as
many as thirty times); Darneal v. State, 174 P. 290, 290–91, 293 (Okla.
Crim. App. 1917) (affirming a riot conviction of a defendant who in the
middle of the night “took an old man” out of the tent where he lived with
his two daughters, “dragg[ed] him a short distance,” beat and whipped him,
and cut off his hair). Plaintiffs do not attempt to argue such “heartland”
prosecutions would run afoul of the Constitution. Hansen, 599 U.S. at 782
(“A brief survey of the Federal Reporter confirms that these are heartland
. . . prosecutions.”); see Counterman, 600 U.S. at 73 (limiting its holding to
“true-threats cases”).
In sum, based on Plaintiffs’ arguments, we cannot say in this case
that the law’s “unconstitutional applications substantially outweigh its
constitutional ones.” Moody, 603 U.S. at 724 (emphasis added). Measuring
de novo the Riot Statute’s unconstitutional applications against its plainly
legitimate sweep, we conclude Plaintiffs fail to make a strong showing they
are substantially likely to succeed on the merits of their overbreadth claim.
See Free the Nipple-Fort Collins, 916 F.3d at 797. To the extent Plaintiffs
seek a preliminary injunction based on their claim the Riot Statute is
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unconstitutionally overbroad, we affirm the district court’s decision to deny
that request. See Denver Homeless Out Loud, 32 F.4th at 1277.
IV
We turn now to vagueness. Arguing the Riot Statute is
unconstitutionally vague under the Fourteenth Amendment, Plaintiffs seek
reversal of the district court’s decision not to issue a preliminary injunction.
Again, reviewing de novo, we discern no error.
A
“In our constitutional order, a vague law is no law at all.” United
States v. Davis, 588 U.S. 445, 447 (2019). “Vague laws contravene the ‘first
essential of due process of law’ that statutes must give people ‘of common
intelligence’ fair notice of what the law demands of them.” Id. at 451
(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). “Vague
laws also undermine the Constitution’s separation of powers” by “hand[ing]
responsibility for defining crimes to relatively unaccountable police,
prosecutors, and judges, eroding the people’s ability to oversee the creation
of the laws they are expected to abide.” Id.
To guard against these harms, “the void-for-vagueness doctrine
requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
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discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983).
Accordingly, a court may invalidate a statute as unconstitutionally vague
“for either of two independent reasons. First, if it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct
it prohibits. Second, if it authorizes or even encourages arbitrary and
discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000).
Here, Plaintiffs argue the Riot Statute is vague for both reasons. Where a
challenged law “interferes with the right of free speech or of association, a
more stringent vagueness test should apply.” Hoffman Estates, 455 U.S. at
499; see also NAACP v. Button, 371 U.S. 415, 432 (1963) (“[S]tandards of
permissible statutory vagueness are strict in the area of free expression.”).
Vagueness doctrine does not require “mathematical certainty” in
statutes. United States v. Lesh, 107 F.4th 1239, 1249 (10th Cir. 2024)
(quoting Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)). Because the
Constitution does not “impose impossible standards of specificity,” courts
must “remain ever mindful that general statements of the law are not
inherently incapable of giving fair and clear warning.” Sperry v. McKune,
445 F.3d 1268, 1271 (10th Cir. 2006) (internal quotation marks omitted).
“After all, in most English words and phrases there lurk uncertainties, so
it is always easy to argue that words are incapable of expressing fixed and
determinate concepts.” Wyo. Gun Owners v. Gray, 83 F.4th 1224, 1233–34
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(10th Cir. 2023) (brackets and internal quotation marks omitted). “What
renders a statute vague is not the possibility that it will sometimes be
difficult to determine whether the incriminating fact it establishes has been
proved; but rather the indeterminacy of precisely what that fact is.”
Williams, 553 U.S. at 306.
B
This appeal began with a dispute about whether the statute has a
mens rea element at all. The OCCA has now resolved that question, as all
agree: The State must prove in a § 1311 prosecution that the defendant
acted “willfully[.]” Terry II, 2026 OK CR 10, ¶ 18. But the consensus about
the mens rea in the Riot Statute does not settle Plaintiffs’ vagueness
challenge just yet. The reason, in Plaintiffs’ view, is that the OCCA’s
construction of the Riot Statute still does not pass federal constitutional
muster, so reversal is required. Plaintiffs raise two arguments in support,
but neither is persuasive.
First, Plaintiffs argue the mens rea established by Terry II attaches
only to a defendant’s decision to speak, not to threaten. According to
Plaintiffs, the “only mens rea relating to the intent to threaten is ‘common
intent.’ Neither the statute nor the OCCA’s answers give notice of what
level of intent to threaten is required.” Aplt. Second Supp. Br. at 14–15.
Thus, Plaintiffs say, the OCCA’s opinions “offer no clarity to Oklahomans
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seeking to exercise their right to protest while steering clear of potential
prosecution under [§] 1311.” Aplt. Second Supp. Br. at 15.
Plaintiffs are incorrect. If a statute has a “general scienter provision,”
courts apply that scienter provision to all “statutory terms that ‘separate
wrongful from innocent acts.’” Ruan v. United States, 597 U.S. 450, 458
(2022) (quoting Rehaif v. United States, 588 U.S. 225, 229, 232 (2019));
accord MODEL PENAL CODE § 2.02(4) (“When the law defining an offense
prescribes the kind of culpability that is sufficient for the commission of an
offense, without distinguishing among the material elements thereof, such
provision shall apply to all the material elements of the offense, unless a
contrary purpose plainly appears.”). This rule has been routinely used to
flesh out criminal statutes where one element lacks a scienter provision,
but another part of the statute supplies that provision. See, e.g., United
States v. X-Citement Video, Inc., 513 U.S. 64, 68–72 (1994) (holding the
mens rea “knowingly” applied to both subprovisions in a statute, even where
that interpretation was not “[t]he most natural grammatical reading” of the
statute, because such a reading “avoid[s] substantial constitutional
questions”); Ruan, 597 U.S. at 454–55, 458–59 (applying the “general
scienter provision” of “knowingly or intentionally” to the authorization-todistribute-substances element of 21 U.S.C. § 841 because applying the
“mens rea to the authorization clause . . . ‘helps advance the purpose of
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scienter, for it helps to separate wrongful from innocent acts’” (quoting
Rehaif, 588 U.S. at 232)). We readily conclude the “willfully” mens rea
identified by Terry II covers every element required in a threats prosecution
under the Riot Statute. Ordinary principles used to interpret criminal
statutes undercut Plaintiffs’ contrary argument.
Second, even if “willfulness” applies to every element, Plaintiffs argue
that fails to solve the Riot Statute’s vagueness problem. The reason,
Plaintiffs insist, is the statute’s mens rea of “willfully” does not clear the
hurdle of “recklessness” set by the Supreme Court in Counterman. For their
part, Defendants say we can reject Plaintiffs’ vagueness challenge merely
on the fact that the Riot Statute contains a mens rea of willfulness. In their
view, we need not answer in this case the “theoretical question” whether
the Riot Statute’s mens rea of willfulness comports with the recklessness
standard in Counterman. Aple. Second Supp. Br. at 18. We agree.
As the Supreme Court has repeatedly recognized, “a scienter
requirement may mitigate a law’s vagueness, especially with respect to the
adequacy of notice to the complainant that his conduct is proscribed.”
Hoffman Estates, 455 U.S. at 499 & n.14 (collecting cases); see United States
v. El-Hajjaoui, 227 F.3d 1274, 1277 n.1 (10th Cir. 2000) (“Not infrequently
the Supreme Court, in passing upon a statute claimed to be
unconstitutional for vagueness, has concluded that the statute gives fair
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warning because scienter is an element of the offense.” (internal quotation
marks omitted)). In other words, “[t]he presence of a scienter inquiry can
save an otherwise vague statute.” Ward v. Utah, 398 F.3d 1239, 1252 (10th
Cir. 2005) (rejecting a facial vagueness challenge). More particularly, we
have found a “statutory requirement that an act must be willful or
purposeful . . . does relieve the statute of the objection that it punishes
without warning an offense of which the accused was unaware.” United
States v. Corrow, 119 F.3d 796, 804 (10th Cir. 1997) (quoting Screws v.
United States, 325 U.S. 91, 102 (1945) (plurality opinion)).
Applying these principles, we reject Plaintiffs’ vagueness challenge.
Everyone agrees the OCCA has adopted “willfully” as the mens rea for
threats prosecutions under the Riot Statute. Terry II, 2026 OK CR 10, ¶ 18.
The Riot Statute, then, is “not silent as to mens rea[.]” Ruan, 597 U.S. at
458. Under these circumstances, we conclude the Riot Statute’s mens rea
requirement “mitigates any vagueness and makes the statute
constitutional.” 17 Bushco v. Shurtleff, 729 F.3d 1294, 1307 (10th Cir. 2013)
(brackets omitted) (quoting Ward, 398 F.3d at 1252).
Plaintiffs’ request for a preliminary injunction fails the first factor:
Plaintiffs have failed to make a strong showing they are substantially likely
17 We state no opinion on whether the willfulness mens rea in the Riot
Statute satisfies the recklessness standard announced in Counterman.
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to succeed on the merits of their Fourteenth Amendment challenge. See Free
the Nipple-Fort Collins, 916 F.3d at 797; Denver Homeless Out Loud, 32
F.4th at 1277.
V
We AFFIRM the district court’s denial of Plaintiffs’ motion for a
preliminary injunction.
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No. 24-6046, Terry v. Drummond
ROSSMAN, Circuit Judge, concurring.
As the majority opinion noted, we need not decide in this case whether
the willfulness mens rea in the Riot Statute comports with Counterman v.
Colorado, 600 U.S. 66 (2023). Though this question is appropriately understood
as “theoretical” in Plaintiffs’ appeal, see supra Maj. Op. at 34, I write separately
for the day when the question is actually before us.
In Counterman, the Supreme Court considered whether the First
Amendment “requires proof that the defendant had some subjective
understanding of the threatening nature of his statements” before a
defendant’s threats may be punished by the State. 600 U.S. at 69. Defendant
Billy Counterman sent hundreds of Facebook messages to C.W., a local singer
and musician whom Mr. Counterman had never met. Some messages were
innocuous; others suggested harm. 1 The messages upended C.W.’s daily life,
and she contacted law enforcement.
The State of Colorado charged Mr. Counterman under a statute making
it unlawful to “[r]epeatedly . . . make[] any form of communication with
another person” in “a manner that would cause a reasonable person to suffer
1 The messages included: “Fuck off permanently”; “Staying in cyber life
is going to kill you”; “You’re not being good for human relations. Die.” Counterman, 600 U.S. at 70.
Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 38
serious emotional distress and does cause that person . . . to suffer serious
emotional distress.” Id. at 70 (alterations in original) (quoting COLO. REV.
STAT. § 18-3-602(1)(c) (2022)). The only evidence Colorado proposed to
introduce at trial were the Facebook messages. Mr. Counterman moved to
dismiss the criminal charge on First Amendment grounds, arguing his
messages were not so-called “true threats” and were therefore protected by the
First Amendment. Id. at 71. Under Colorado law, the prosecution had to show
only that a reasonable person would have viewed the messages as
threatening—not that Mr. Counterman subjectively understood the
threatening nature of the communications. The trial court denied the motion
to dismiss, and a jury found Mr. Counterman guilty. The Colorado Court of
Appeals affirmed, and the Colorado Supreme Court denied review.
The Supreme Court reversed. The Court reiterated that “[t]rue threats
of violence” are among the constitutionally prohibitable categories of speech.
Id. at 72. But, the Court recognized, “[p]rohibitions on speech have the
potential to chill, or deter, speech outside their boundaries.” Id. at 75. “The
speaker’s fear of mistaking whether a statement is a threat; his fear of the legal
system getting that judgment wrong; his fear, in any event, of incurring legal
costs—all those may lead him to swallow words that are in fact not true
threats.” Id. at 78.
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To “prevent that outcome” and “reduc[e] an honest speaker’s fear that he
may accidentally . . . incur liability,” id. at 75 (emphasis added) (internal
quotation marks omitted), the Supreme Court held a State can punish a threat
only by first proving the defendant “had some subjective understanding of the
threatening nature of his statements[,]” id. at 69; see id. at 76 (explaining the
subjective-intent requirement prevents prosecutions of a “clueless speaker”
whose words were not “‘intended’ . . . to produce imminent disorder” (quoting
Hess v. Indiana, 414 U.S. 105, 109 (1973) (per curiam))). Specifically, the First
Amendment requires a subjective mens rea of at least recklessness, a mental
state in which “a speaker is aware that others could regard his statements as
threatening violence and delivers them anyway.” Id. at 79 (internal quotation
marks omitted).
In my view, the weight of Oklahoma authority, read in light of Terry v.
Drummond (Terry II), 2026 OK CR 10 (Okla. Crim. App. 2026), settles that the
mens rea of willfulness—in the context of a true-threats prosecution under the
Riot Statute—is at least equivalent to Counterman’s recklessness standard.
The point of the Counterman standard is to prevent the State from punishing
speech that threatens inadvertently. Its intended beneficiaries are the “honest
speaker[],” 600 U.S. at 75 (internal quotation marks omitted), the “clueless
speaker,” id. at 76, and even the “delusional speaker,” all of whom “may lack
awareness of the threatening nature of [their] speech[,]” id. at 120 (Barrett, J.,
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Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 40
dissenting). If a speaker is merely negligent—that is, if a speaker “is not but
should be aware of a substantial risk” others will understand her speech as a
threat—the State cannot prosecute. Id. at 79 n.5.
In Terry II, the OCCA clarified “willfully” in the Riot Statute means
“intentionally,” “designedly,” and “not accidentally.” 2026 OK CR 10, ¶ 15
(emphasis added) (quoting Miller v. State, 130 P. 813, 815 (Okla. Crim. App.
1913)). Put differently, a crime that cannot be committed “accidentally” under
Oklahoma law is a crime that requires an intent of at least recklessness. As
the Oklahoma Supreme Court recently explained, “negligence is ordinarily
associated with types of inadvertence and not types of willful conduct.” Bailey
v. State ex rel. Bd. of Tests for Alcohol & Drug Influence, 2022 OK 50, ¶ 51, 510
P.3d 845, 862 (Okla. 2022); see id. at ¶ 49, 861 (“[O]rdinary and gross
negligence . . . both differ in kind from willful and intentional conduct[.]”
(quoting Altman v. Aronson, 121 N.E. 505, 592 (Mass. 1919))); Rogers v. Excise
Bd. of Greer Cnty., 701 P.2d 754, 761 (Okla. 1984) (holding “[w]illfulness,” in
context of the Oklahoma Open Meeting Act, “encompasses conscious,
purposeful violations of the law or blatant or deliberate disregard of the law by
those who know, or should know the requirements of the [law]”). Thus, in a
prosecution charging true threats, I would conclude the Riot Statute’s mens
rea of willfulness satisfies Counterman’s recklessness requirement.
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