Terry v. Drummond

Opinion

Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 1 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 Defendants- Appellees. Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 2

_________________________________

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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 3

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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 4

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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 5

Tyreke Baker, Preston Nabors, and Trevour Webb eventually pleaded guilty

to misdemeanor charges. 5

B

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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 6

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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 7

“[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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 8

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.

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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 9

(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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 10

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 preliminary-

injunction 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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 11

(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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 12

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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 13

“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

13 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 14

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

14 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 15

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).

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

15 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 16

‘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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 17

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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 18

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 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 19

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-in- time 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 pre- enforcement 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. 19 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 20

“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);

20 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 21

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

21 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 22

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)).

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

22 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 23

(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.”

23 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 24

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

24 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 25

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 “real-

world” 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) 25 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 26

(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.”). 26 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 27

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

27 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 28

“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)). 28 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 29

(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

29 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 30

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.

“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

30 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 31

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

31 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 32

(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.

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

32 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 33

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-to-

distribute-substances element of 21 U.S.C. § 841 because applying the

“mens rea to the authorization clause . . . ‘helps advance the purpose of

33 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 34

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

34 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 35

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. 35 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 36

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.

36 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 37

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.

2 Appellate Case: 24-6046 Document: 91-1 Date Filed: 07/28/2026 Page: 39

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.,

3 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.