¶42 (dissenting) — A troubled and bullied young high school student was in counseling to address trauma stemming from his childhood of abuse and neglect. Following coaxing from his therapist to discuss his angry thoughts and plans, and in the context of the therapist-patient relationship, he disclosed his desire to violently harm three other students. Thereafter, a deputy sheriff asked the young man to repeat what he had previously disclosed to the therapist. The young man—Trey M.—did as he was told. There was no evidence that Trey M. ever volunteered these statements without being coaxed by adults in positions of authority; there was no evidence that *909Trey M. ever actually communicated these statements to the three students directly; and there was no evidence that Trey M. intended, desired, or knew that his coaxed disclosures of these statements to responsible adults would be communicated to those three other students indirectly In fact, the trial court judge explicitly found that Trey M. told the deputy sheriff “that he was having a hard time wanting to do the wrong things.” Clerk’s Papers at 43 (Finding of Fact 1.10). Nevertheless, as a result of following the instructions of the therapist and the deputy sheriff to put his disturbing thoughts into words, Trey M. was charged with and convicted of three counts of felony harassment—for putting these thoughts into words.
¶43 I agree with the majority that these convictions were permissible under our current precedent; we have interpreted the felony harassment statute, RCW 9A.46.020, to reach statements like Trey M.’s therapeutic disclosures. But the time has come to abandon that precedent. To the extent that it allows felony convictions for merely negligent speech, this precedent violates First Amendment protections, conflicts with fundamental precepts of Anglo-American criminal justice, and—as this case amply demonstrates—establishes bad policy. U.S. Const. amend. I. I therefore dissent.
ANALYSIS
¶44 Trey M. was convicted of violating RCW 9A.46-.020(1)(a)(i), which makes it a felony to “knowingly threaten! ] ... [t] o cause bodily injury immediately or in the future to the person threatened or to any other person.” (Emphasis added.) This court’s decisions in State v. J.M., 144 Wn.2d 472, 482, 28 P.3d 720 (2001), and State v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (2004),12 severely limited the reach *910of the modifier “knowingly.” Those cases held that to commit felony harassment, a person must know he is communicating—that is, he may not be convicted for muttering a threat under his breath or recording it in a private journal—but need not know or intend that (1) this communication will actually reach the subject of the threat13 or (2) the subject will actually feel threatened.14 Accordingly, the majority in this case upholds Trey M.’s convictions despite the absence of any evidence that Trey M. knew or intended that the thoughts he put into words for his therapist would be transmitted to the other students as threats. Majority at 906 (“‘[T]he person threatened must find out about the threat although the perpetrator need not know nor should know that the threat will be communicated to the victim.’ ” (alteration in original) (quoting J.M., 144 Wn.2d at 482)). For the reasons given infra, I conclude that we must overturn J.M. and Kilburn and reverse Trey M.’s convictions.
I. This court’s decisions in J.M. and Kilburn violate the First Amendment protections implicitly recognized by the United States Supreme Court in Virginia v. Black15
¶45 Neither J.M., nor Kilburn, nor any of our prior decisions interpreting the felony harassment statute addressed the United States Supreme Court’s decision in Black, 538 U.S. 343. Trey M. argues that the First Amendment principles recognized in that case require reversal of his convictions. He is correct.
*911¶46 The majority dismisses Black as a “fractured plurality decision . . . [that] provides no clear directive . . . compelling] this court to abandon its precedent.” Majority at 901.1 agree that Black is a complicated case: it generated four separate opinions and a split among the federal courts of appeals. See discussion infra. But I disagree that Black can be reconciled with Trey M.’s conviction, under a negligence standard, for confiding in his counselor and law enforcement.
¶47 Black addressed a Virginia statute that criminalized cross burning “ ‘on the property of another, a highway or other public place’ ” done “ ‘with the intent of intimidating any person or group of persons.’ ” 538 U.S. at 348 (quoting Va. Code Ann. § 18.2-423). The statute also provided that “ ‘[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate.’ ” Id. (quoting Va. Code Ann. § 18.2-423). In other words, the statute provided that the act of burning a cross on public land, a highway, or the property of another triggered a presumption that the statute’s mens rea element—intent to intimidate—was satisfied. At a trial for a violation of the statute, the defendant would have to rebut this presumption (or raise a reasonable doubt as to the fact of cross burning on property covered by the statute).
¶48 Eight justices agreed that this statute posed First Amendment problems16—they differed only as to the appropriate remedy for these problems. Of significance here, five justices agreed that although a state may criminalize “cross burning with intent to intimidate,”17 it may not make *912the act of cross burning sufficient, by itself, to establish the prohibited intent.18 These justices reasoned that if a jury was permitted to convict on the basis of cross burning alone—and thus permitted to ignore other evidence relating to the defendant’s motives for burning the cross—then the statute might sweep up constitutionally protected expression, which they defined as expression that was not intended to intimidate: “Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. at 360 (emphasis added). Accordingly, under Black, the First Amendment protects cross burning even when that act is carried out—by someone with full knowledge of its historical and symbolic significance—with the intent only to “creatfe] anger or resentment” or unite “a group of like-minded believers.” Id. at 366 (lead opinion).19 It makes no difference what effect the cross burning actually has on anyone who witnesses it; the First Amendment protects that form of expression provided it is not intended to intimidate.
¶49 Unlike the majority, I am unable to conclude that Black protects cross burning but not statements like Trey *913M.’s, made first in the context of mental health treatment and then later repeated at the urging of a law enforcement officer.
¶50 To distinguish Black from this case, the majority relies on two sources of authority: a footnote to this court’s decision in State v. Schaler, 169 Wn.2d 274, 287 n.4, 236 P.3d 858 (2010), and Justice Thomas’ lone dissenting opinion in Elonis v. United States,_U.S._, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015). Majority at 899-901. Neither suffices.
¶51 The Schaler note supports rather than undermines Trey M.’s reliance on Black. In Schaler, a man in the throes of a mental breakdown called a crisis services hotline and, crying hysterically, confessed that he had either killed his neighbors or dreamed that he killed them. 169 Wn.2d at 278-80. After being involuntarily committed to a mental health facility, the man, who had not in fact killed anyone, continued to voice specific threats to kill his neighbors but “also said, ‘ “I hope I didn’t really kill her.” ’ ” Id. at 280. The State charged him with violating the antiharassment statute at issue in this case (RCW 9A.46.020(1)(a)(i), (b), (2)(b)). Id. at 281. At trial, the man successfully requested a jury instruction requiring the State to prove that he intended to communicate a threat, but the jury was not also instructed on the definition of a “true threat,” so this court reversed his conviction. Id. at 281-82, 288-90. The defendant in Schaler did not challenge our objective definition of “true threat” based on the reasonable person standard20—instead, he argued only that “[i]n the context of his mental health evaluation . . . his words were a cry for help, and a reasonable person in his position would not foresee that a listener would take them as a serious expression of intent to kill rid. at 284. This court agreed and, having no occasion to reconsider our objective standard, held that the jury in a *914harassment trial must be asked “whether a reasonable person in [the defendant’s] position would foresee that his statements or acts would be interpreted as a serious expression of intent to carry out the threat.” Id. at 290. When the Schaler court addressed Black—in the footnote relied on by the majority in this case—it was to point out that “the law at issue in Black required an even greater mens rea as to the listener’s fear” and therefore supported reversal for a new, more defendant-protective jury instruction. Id. at 287 n.4 (emphasis added). This “distinction]as the majority calls it,21 supports Trey M.’s position in this case, not the State’s.
¶52 As for Justice Thomas’ dissent in Elonis—an opinion that no other justice signed—it cannot substitute for our own analysis of the Black decision itself. The majority eschews any such analysis in favor or Justice Thomas’ assertion that Black “ ‘says little’ ” about the constitutional question presented here. Majority at 900 (quoting Elonis, 135 S. Ct. at 2027 (Thomas, J., dissenting)). But for all of the reasons outlined above, this assertion is untenable.
¶53 Finally, it is true that a majority of the lower federal appellate decisions addressing the question—all decisions interpreting 18 U.S.C. § 875(c), the federal antithreat statute at issue in Elonis, 135 S. Ct. 2001—have rejected Trey M.’s reading of Black. Majority at 902. But those decisions are wrong. They begin and end with the observation that the Black Court “had no occasion” to impose a subjective intent requirement on “threat-prohibiting statutes” since the Virginia statute at issue already had such a requirement. United States v. Jeffries, 692 F.3d 473, 477-81 (6th Cir. 2012), abrogated by United States v. Houston, 792 F.3d 663, 667 (6th Cir. 2015); see also United States v. Clemens, 738 F.3d 1, 11 (1st Cir. 2013) (plain error review and citing Jeffries, 692 F.3d at 478, 480); United States v. Nicklas, 713 F.3d 435, 439-40 (8th Cir. 2013) (citing Jeffries, 692 F.3d at 479-80); United States v. Martinez, 736 F.3d 981, 986-87 *915(11th Cir. 2013) (citing Jeffries, 692 F.3d at 478-80), vacated, 135 S. Ct. 2798 (2015); United States v. Elonis, 730 F.3d 321, 331 (3d Cir. 2013) (citing Jeffries, 692 F.3d at 483), rev’d, 135 S. Ct. 2001. That may be true as far as the statute at issue was concerned, but it fails to acknowledge the Black Court’s actual analysis, which treated the statute’s subjective intent element as required by the First Amendment. See discussion supra. Two circuit courts have recognized this implied holding in Black,22 and a third has endorsed this view without reaching the question.23 These courts have adopted the correct interpretation of Black) we should do the same.
II. This court’s decisions in J.M. and Kilburn also violate the principle, applied in Elonis, that “wrongdoing must be conscious to be criminal”
¶54 While Black alone compels us to reverse Trey M.’s conviction, reversal is also supported by the United States Supreme Court’s recent decision in Elonis, 135 S. Ct. 2001. As noted above and by the majority, Elonis addressed 18 U.S.C. § 875(c), the federal statute “mak[ing] it a crime to transmit in interstate commerce ‘any communication containing any threat ... to injure the person of another,’ ” id. at 2004 (second alteration in original) (quoting 18 U.S.C. § 875(c)); majority at 896-97. Applying the principle— rooted in common law notions of basic justice—that “ ‘wrongdoing must be conscious to be criminal,’ ”24 the Elonis Court read an actual (subjective knowledge) require*916ment into 18 U.S.C. § 875(c). 135 S. Ct. at 2010. This requirement—that the government must prove an “evil mind” before imposing the stigma and disabilities of a felony conviction—stands at the heart of the United States’ conception of criminal justice. Staples v. United States, 511 U.S. 600, 605, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994) (“ ‘ [t] he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence’ ” (alteration in original) (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 436, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978))).
¶55 The majority distinguishes Elonis on the ground that 18 U.S.C. § 875(c) “is silent on the scienter needed to commit the offense.” Majority at 897. According to the majority, Washington’s felony harassment statute is not similarly “silent”—and thus does not trigger the rule of statutory construction applied in Elonis—because it penalizes a person who “ ‘knowingly threatens’ ” another. Id. (quoting RCW 9A.46.020(1)(a)). But this distinction begs the question presented in this case: What must a defendant “know” in order to trigger liability under the felony harassment statute? And with respect to that question, Elonis is directly on point. It holds that in the context of threat prosecutions, the knowledge separating innocent from wrongful conduct is the defendant’s actual “knowledge that the communication will be viewed as a threat,” Elonis, 135 S. Ct. at 2012:
The “presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” [United. States v.] X-Citement Video, 513 U.S. [64,] 72[, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994)] (emphasis added). The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct “wrongful.” Here “the crucial element separating legal innocence from wrongful conduct” is the threatening nature of the communication. Id., at 73, 115 S.Ct. 464. The mental state *917requirement must therefore apply to the fact that the communication contains a threat.
Id. at 2011. The Court has consistently applied this presumption when interpreting statutes that, like Washington’s felony harassment law, penalize “knowing” conduct.25
¶56 Finally, I note that although Elonis did not reach any First Amendment question—and thus did not explicitly state that a true threat requires subjective intent under Black—it did abrogate all of the federal decisions (discussed above) reaching the contrary conclusion.26 As a result, only one interpretation of 18 U.S.C. § 875(c)—the federal threat statute at issue in all of those cases—survives today: the interpretation that avoids the First Amendment problem posed by criminalizing speech that is merely negligent.
*918III. To the extent that they allow felony convictions for merely negligent speech, J.M. and Kilburn are incorrect and harmful
¶57 Before we may overturn our own precedent, there must be a clear showing that that precedent is both incorrect and harmful. In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). For all of the reasons given above, I conclude that our decisions in J.M. and Kilburn are incorrect. To the extent that those decisions permit felony harassment convictions for merely negligent speech, they violate the First Amendment protections recognized in Black, 538 U.S. 343, and the principle of statutory construction applied in Elonis, 135 S. Ct. 2001. I also conclude that J.M. and Kilburn are clearly harmful for two reasons.
¶58 First, J.M. and Kilburn infringe a constitutional protection. We have previously held that such infringement constitutes “harm” sufficient to overcome the rule of stare decisis. State v. W.R., 181 Wn.2d 757, 769, 336 P.3d 1134 (2014) (prior precedent harmful because it violated due process protections); State v. Barber, 170 Wn.2d 854, 871, 248 P.3d 494 (2011) (prior precedent harmful because it offended separation of powers principles).
¶59 Second, we have found precedent clearly harmful where it creates significant policy problems. Barber, 170 Wn.2d at 871 (collecting cases). J.M. and Kilburn certainly fit this bill, as illustrated by their application to the facts in this case.
¶60 At Trey M.’s sentencing hearing—a proceeding at which every speaker expressed concern and compassion for Trey M.—the judge imposed probation with several conditions, including that Trey M. continue to participate in mental health treatment. 3 Report of Proceedings (Dec. 19, 2014) at 262-63. When she imposed that sentence, the judge struggled to explain to Trey M. why he was being punished *919for the things he had previously said to his therapist and how he should proceed in future therapy sessions:
Well, this is a difficult, sad case. It’s obviously been horrible for everybody, including Trey [M.]. And I think Trey[ M.]’s learned that you can’t make a plan to kill people and tell anybody about it, including your therapist. But on the other hand, you shouldn’t be thinking that way. So that’s the problem.
. . . And I think that your mind is unhealthy at this time. I understand that.
. . . On the one hand, people should feel safe to make comments to a therapist in a therapeutic setting; on the other hand, this just went over—over the line. So ... [your therapist] felt that he had to report it. He was concerned enough that he reported it and, basically, things snowballed and a lot of people found out about it and it became very, very frightening for a lot of people. . . .
.. . Everybody has thoughts like you have. Some of them are spoken and some of them are unspoken, but we all do the best we can to make sure that other people aren’t afraid of what we say, okay?
Id. at 257-61.
¶61 The judge’s advice is consistent with our holdings in J.M. and Kilburn—it warns Trey M. that he faces criminal sanction as a felon for therapeutic disclosures that are “over the line,” regardless of his criminal intent. Id. at 259. Under J.M. and Kilburn then, Trey M. must censor himself when he returns to therapy. Because this outcome is as frightening and counterproductive as it is unconstitutional, I would overturn those cases.
CONCLUSION
¶62 Imposing felony criminal liability for Trey M.’s disclosures—disclosures that were requested by adults in positions of authority—contradicts controlling United States *920Supreme Court precedents. It undermines constitutional rights, flouts the plain language of the felony harassment statute, and risks undermining attempts to achieve the trust necessary to address juvenile mental health issues. It also opens the floodgates to prosecutions for harsh language that the speaker did not intend to be frightening in other areas, like the political context. For all of these reasons, I respectfully dissent.
The parties and the majority also cite State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001), as the source of our “objective” test for knowing threats (i.e., threats that are constitutionally proscribable and covered by our felony *910harassment statute). Majority at 893-94. But I note that Williams quoted the objective standard only in dicta because it was not at issue in that case. 144 Wn.2d at 203-11 (holding that felony harassment statute was unconstitutionally vague and overbroad because it proscribed threats to harm a person’s “mental health’’ but did not define that term).
J.M., 144 Wn.2d at 476-82.
Kilburn, 151 Wn.2d at 46-48.
538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (partial plurality opinion).
Three justices would have invalidated the statute as impermissibly content based rather than impermissibly overbroad. Id. at 386-87 (Souter, J., concurring in the judgment in part and dissenting in part). And Justice Thomas would have upheld the statute on the basis that it prohibited conduct rather than speech. Id. at 394-95 (Thomas, J., dissenting).
Id. at 362; see also id. at 368 (Stevens, J., concurring) (“[c]ross burning with ‘an intent to intimidate,’ Va. Code Ann. § 18.2-423 (1996), unquestionably qualifies as the kind of threat that is unprotected by the First Amendment”), 368 (Scalia, J., concurring in part and dissenting in part) (“I agree with the *912Court that ... a State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate.”).
Id. at 365 (lead opinion) (concluding that the Virginia statute’s “prima facie evidence” provision was unconstitutional because it facilitated the arrest, prosecution, and conviction of a person who burned a cross for political or cultural reasons instead of to intentionally intimidate), 368 (Stevens, J., concurring), 379 (Scalia, J., concurring in part and dissenting in part) (agreeing that Court must reverse conviction of defendant whose jury “was instructed that ‘[t]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent’ ” (alteration in original)).
Id. at 365-66 (lead opinion) (“prima facie evidence” provision rendered Virginia statute facially overbroad because it “does not distinguish between a cross burning done with the [constitutionally protected] purpose of creating anger or resentment and a cross burning done with the [constitutionally proscribable] purpose of threatening or intimidating a victim”), 374 (Scalia, J., concurring in part and dissenting in part) (agreeing that the First Amendment prohibits the conviction of a person for cross burning without the intent to intimidate, but concluding that the number of such convictions likely to occur under the Virginia statute was too small to render the statute facially overbroad).
Pet. for Review, State v. Schaler, No. 81864-9, at 13 (Wash. Aug. 19, 2008) (conceding that “[t]he true threat test is determined under an objective standard that focuses on the speaker” (citing Kilburn, 151 Wn.2d at 44)).
Majority at 900.
United States v. Heineman, 767 F.3d 970, 976-82 (10th Cir. 2014) (holding, after long discussion of the various opinions in Black, that that case “establish[ed] that a defendant can be constitutionally convicted of making a true threat only if the defendant intended the recipient of the threat to feel threatened”); United States v. Bagdasarian, 652 F.3d 1113, 1116-18 (9th Cir. 2011) (Black requires that federal statute be construed to require proof of subjective intent to threaten).
United States v. Parr, 545 F.3d 491, 499-500 (7th Cir. 2008) (declining to reach the question but opining that after Black, “[i]t is . . . likely . . . that an entirely objective definition [of ‘true threat’] is no longer tenable”).
Elonis, 135 S. Ct. at 2009 (quoting Morissette v. United States, 342 U.S. 246, 252, 72 S. Ct. 240, 96 L. Ed. 2d 288 (1952)).
E.g., Flores-Figueroa v. United States, 556 U.S. 646, 647, 652, 129 S. Ct. 1886, 173 L. Ed. 2d 853 (2009) (identity theft statute required government to prove defendant “knew that the ‘means of identification’ he or she unlawfully transferred, possessed, or used, in fact, belonged to ‘another person’ ” because “courts ordinarily read a phrase in a criminal statute that introduces elements of a crime with the word ‘knowingly’ as applying that word to each element’’ (quoting 18 U.S.C. § 1028A(a)(1))); X-Citernent Video, 513 U.S. at 67-68 (even though most natural reading of child pornography statute indicated that government need prove only defendant knew he transported, shipped, received, or distributed the prohibited materials, Court would construe statute so as to apply the modifier “knowingly’’ to the nature of the materials—i.e., the fact that they depicted minors engaging in sexually explicit conduct); see also McFadden v. United States,_ U.S._, 135 S. Ct. 2298, 2303-06, 192 L. Ed. 2d 260 (2015) (“the most natural reading’’ of statute making it a crime “ ‘knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance’ ’’ requires government to prove “that the defendant knew he was dealing with ‘a controlled substance’ ’’ (alteration in original) (quoting 21 U.S.C. § 841(a)(1))).
Martinez, 135 S. Ct. 2798 (vacating and remanding to the Court of Appeals for further consideration in light oí Elonis); United State v. White, 810 F.3d 212, 220 (4th Cir. 2016) (“Elonis abrogates our prior holding that liability under [18 U.S.C.] § 875(c) can turn solely on how a recipient would interpret a statement, without regard to whether the speaker intended it as a threat’’); Houston, 792 F.3d at 667 (holding that Jeffries has been abrogated by Elonis); Nicklas, 713 F.3d at 440 (no First Amendment error in permitting conviction, under 18 U.S.C. § 875(c), according to negligence standard); Clemens, 738 F.3d at 11 (not plain error to permit conviction, under 18 U.S.C. § 875(c), according to objective negligence standard).