yet the Court struck down, as facially unconstitutional, a statute providing that burning a cross on the property of another, or on public property, was prima facie evidence of intent to intimidate. I also disagree with the majority's analysis to the extent it suggests that most post-Black decisions have continued to apply an objective standard to determine whether speech constitutes a true threat. As the majority correctly points out, since Black was decided, only a few courts have directly considered whether Black requires proof of the speaker's subjective intent to threaten. One case cited by the majority, United States v. Cassel, 408 F.3d 622 (9th Cir.2005), holds that Black requires such subjective intent; see also United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir.2005)(<HOLDING>). Of the five cases that the majority cites as
holding that the defendants habeas claim was procedurally barred because it could have been or was raised in his postconviction motion holding as procedurally barred an initial postconviction claim alleging juror misconduct recognizing that black requires an intent to threaten but holding that defendants claim that jury instructions erroneously failed to include such requirement was procedurally barred holding that the caldwell claim is procedurally barred because it could have been raised on direct appeal but was not holding that a prosecutorialmisconduct claim was procedurally barred when raised for the first time on appeal