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SUPREME COURT OF THE UNITED STATES
_________________
No. 13–983
_________________
ANTHONY DOUGLAS ELONIS, PETITIONER v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the third circuit
[June 1, 2015]
Chief Justice Roberts delivered the opinion of
the Court.
Federal law makes it a crime to transmit in
interstate commerce “any communication containing any threat
. . . to injure the person of another.” 18
U. S. C. §875(c). Petitioner was convicted of
violating this provision under instructions that required the jury
to find that he communicated what a reasonable person would regard
as a threat. The question is whether the statute also requires that
the defendant be aware of the threatening nature of the
communication, and—if not—whether the First Amendment
requires such a showing.
I
A
Anthony Douglas Elonis was an active user of
the social networking Web site Facebook. Users of that Web site may
post items on their Facebook page that are accessible to other
users, including Facebook “friends” who are notified
when new content is posted. In May 2010, Elonis’s wife of
nearly seven years left him, taking with her their two young
children. Elonis began “listening to more violent
music” and posting self-styled “rap” lyrics
inspired by the music. App. 204, 226. Eventually, Elonis changed
the user name on his Facebook page from his actual name to a
rap-style nom de plume, “Tone Dougie,” to distinguish
himself from his “on-line persona.” Id., at 249,
265. The lyrics Elonis posted as “Tone Dougie” included
graphically violent language and imagery. This material was often
interspersed with disclaimers that the lyrics were
“fictitious,” with no intentional “resemblance to
real persons.” Id., at 331, 329. Elonis posted an
explanation to another Facebook user that “I’m doing
this for me. My writing is therapeutic.” Id., at 329;
see also id., at 205 (testifying that it “helps me to
deal with the pain”).
Elonis’s co-workers and friends viewed the
posts in a different light. Around Halloween of 2010, Elonis posted
a photograph of himself and a co-worker at a “Halloween
Haunt” event at the amusement park where they worked. In the
photograph, Elonis was holding a toy knife against his
co-worker’s neck, and in the caption Elonis wrote, “I
wish.” Id., at 340. Elonis was not Facebook friends
with the co-worker and did not “tag” her, a Facebook
feature that would have alerted her to the posting. Id., at
175; Brief for Petitioner 6, 9. But the chief of park security was
a Facebook “friend” of Elonis, saw the photograph, and
fired him. App. 114–116; Brief for Petitioner 9.
In response, Elonis posted a new entry on his
Facebook page:
“Moles! Didn’t I tell
y’all I had several? Y’all sayin’ I had access to
keys for all the f***in’ gates. That I have sinister plans
for all my friends and must have taken home a couple. Y’all
think it’s too dark andfoggy to secure your facility from a
man as mad as me? You see, even without a paycheck, I’m still
the main attraction. Whoever thought the Halloween Haunt could be
so f***in’ scary?” App. 332.
This post became the basis for Count One of
Elonis’ssubsequent indictment, threatening park patrons and
employees.
Elonis’s posts frequently included crude,
degrading, and violent material about his soon-to-be ex-wife.
Shortly after he was fired, Elonis posted an adaptation of a
satirical sketch that he and his wife had watched together.
Id., at 164–165, 207. In the actual sketch, called
“It’s Illegal to Say . . . ,” a
comedian explains that it is illegal for a person to say he wishes
to kill the President, but not illegal to explain that it is
illegal for him to say that. When Elonis posted the script of the
sketch, however, he substituted his wife for the President. The
posting was part of the basis for Count Two of the indictment,
threatening his wife:
“Hi, I’m Tone Elonis.
Did you know that it’s illegal for me to
say I want to kill my wife? . . .
It’s one of the only sentences that
I’m not allowed to say. . . .
Now it was okay for me to say it right then
because I was just telling you that it’s illegal for me to
say I want to kill my wife. . . .
Um, but what’s interesting is that
it’s very illegal to say I really, really think someone out
there should kill my wife. . . .
But not illegal to say with a mortar
launcher.
Because that’s its own sentence.
. . .
I also found out that it’s incredibly
illegal, extremely illegal to go on Facebook and say something like
the best place to fire a mortar launcher at her house would be from
the cornfield behind it because of easy access to a getaway road
and you’d have a clear line of sight through the sun room.
. . .
Yet even more illegal to show an illustrated
diagram.
[diagram of the
house]. . . .” Id., at 333.
The details about the home were accurate.
Id., at 154. At the bottom of the post, Elonis included a
link to the video of the original skit, and wrote, “Art is
about pushing limits. I’m willing to go to jail for my
Constitutional rights. Are you?” Id., at 333.
After viewing some of Elonis’s posts, his
wife felt “extremely afraid for [her] life.”
Id., at 156. A state court granted her a three-year
protection-from-abuse order against Elonis (essentially, a
restraining order). Id., at 148–150. Elonis referred
to the order in another post on his “Tone Dougie” page,
also included in Count Two of the indictment:
“Fold up your [protection-from-abuse
order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
that was improperly granted in the first
place
Me thinks the Judge needs an education
on true threat jurisprudence
And prison time’ll add zeros to my
settlement . . .
And if worse comes to worse
I’ve got enough explosives
to take care of the State Police and the
Sheriff’s Department.” Id., at 334.
At the bottom of this post was a link to the
Wikipedia article on “Freedom of speech.” Ibid.
Elonis’s reference to the police was the basis for Count
Three of his indictment, threatening law enforcement officers.
That same month, interspersed with posts about a
movie Elonis liked and observations on a comedian’s social
commentary, id., at 356–358, Elonis posted an entry
that gave rise to Count Four of his indictment:
“That’s it, I’ve had about
enough
I’m checking out and making a name for
myself
Enough elementary schools in a ten mile
radius
to initiate the most heinous school shooting
ever imagined
And hell hath no fury like a crazy man in a
Kindergarten class
The only question is . . . which
one?” Id., at 335.
Meanwhile, park security had informed both local
police and the Federal Bureau of Investigation about Elonis’s
posts, and FBI Agent Denise Stevens had created a Facebook account
to monitor his online activity. Id., at 49–51,
125. After the post about a school shooting, Agent Stevens
and her partner visited Elonis at his house. Id., at
65–66. Following their visit, during which Elonis was polite
but uncooperative, Elonis posted another entry on his Facebook
page, called “Little Agent Lady,” which led to Count
Five:
“You know your s***’s
ridiculous
when you have the FBI knockin’ at
yo’ door
Little Agent lady stood so close
Took all the strength I had not to turn the
b**** ghost
Pull my knife, flick my wrist, and slit her
throat
Leave her bleedin’ from her jugular in
the arms of her partner
[laughter]
So the next time you knock, you best be serving
a warrant
And bring yo’ SWAT and an explosives
expert while you’re at it
Cause little did y’all know, I was
strapped wit’ a bomb
Why do you think it took me so long to get
dressed with no shoes on?
I was jus’ waitin’ for y’all
to handcuff me and pat me down
Touch the detonator in my pocket and
we’re all goin’
[BOOM!]
Are all the pieces comin’ together?
S***, I’m just a crazy sociopath
that gets off playin’ you stupid f***s
like a fiddle
And if y’all didn’t hear, I’m
gonna be famous
Cause I’m just an aspiring rapper who
likes theattention
who happens to be under investigation for
terrorism
cause y’all think I’m ready to turn
the Valley into Fallujah
But I ain’t gonna tell you which bridge
is gonna fall
into which river or road
And if you really believe this s***
I’ll have some bridge rubble to sell you
tomorrow
[BOOM!][BOOM!][BOOM!]” Id., at
336.
B
A grand jury indicted Elonis for making
threats to injure patrons and employees of the park, his estranged
wife, police officers, a kindergarten class, and an FBI agent, all
in violation of 18 U. S. C. §875(c). App.
14–17. In the District Court, Elonis moved to dismiss the
indictment for failing to allege that he had intended to threaten
anyone. The District Court denied the motion, holding that Third
Circuit precedent required only that Elonis “intentionally
made the communication, not that he intended to make a
threat.” App. to Pet. for Cert. 51a. At trial, Elonis
testified that his posts emulated the rap lyrics of the well-known
performer Eminem, some of which involve fantasies about killing his
ex-wife. App. 225. In Elonis’s view, he had posted
“nothing . . . that hasn’t been said
already.” Id., at 205. The Government presented as
witnesses Elonis’s wife and co-workers, all of whom said they
felt afraid and viewed Elonis’s posts as serious threats.
See, e.g., id., at 153, 158.
Elonis requested a jury instruction that
“the government must prove that he intended to communicate a
true threat.” Id., at 21. See also id., at
267–269, 303. The District Court denied that request. The
jury instructions instead informed the jury that
“A statement is a true threat when a
defendant intentionally makes a statement in a context or under
such circumstances wherein a reasonable person would foresee that
the statement would be interpreted by those to whom the maker
communicates the statement as a serious expression of an intention
to inflict bodily injury or take the life of an individual.”
Id.,at 301.
The Government’s closing argument
emphasized that it was irrelevant whether Elonis intended the
postings to be threats—“it doesn’t matter what he
thinks.” Id., at 286. A jury convicted Elonis on four
of the five counts against him, acquitting only on the charge of
threatening park patrons and employees. Id., at 309. Elonis
was sentenced to three years, eight months’ imprisonment and
three years’ supervised release.
Elonis renewed his challenge to the jury
instructions in the Court of Appeals, contending that the jury
should have been required to find that he intended his posts to be
threats. The Court of Appeals disagreed, holding that the intent
required by Section 875(c) is only the intent to communicate words
that the defendant understands, and that a reasonable person would
view as a threat. 730 F. 3d 321, 332 (CA3 2013).
We granted certiorari. 573 U. S. ___
(2014).
II
A
An individual who “transmits in
interstate or foreign commerce any communication containing any
threat to kidnap any person or any threat to injure the person of
another” is guilty of a felony and faces up to five
years’ imprisonment. 18 U. S. C. §875(c). This
statute requires that a communication be transmitted and that the
communication contain a threat. It does not specify that the
defendant must have any mental state with respect to these
elements. In particular, it does not indicate whether the defendant
must intend that his communication contain a threat.
Elonis argues that the word “threat”
itself in Section 875(c) imposes such a requirement. According to
Elonis, every definition of “threat” or
“threaten” conveys the notion of an intent to inflict
harm. Brief for Petitioner 23. See United States v.
Jeffries, 692 F. 3d 473, 483 (CA6 2012) (Sutton, J.,
dubitante). E.g., 11 Oxford English Dictionary 353
(1933) (“to declare (usually conditionally) one’s
intention of inflicting injury upon”); Webster’s New
International Dictionary 2633 (2d ed. 1954) (“Law,
specif., an expression of an intention to inflict loss or harm on
another by illegal means”); Black’s Law Dictionary 1519
(8th ed. 2004) (“A communicated intent to inflict harm or
loss on another”).
These definitions, however, speak to what the
statement conveys—not to the mental state of the author. For
example, an anonymous letter that says “I’m going to
kill you” is “an expression of an intention to inflict
loss or harm” regardless of the author’s intent. A
victim who receives that letter in the mail has received a threat,
even if the author believes (wrongly) that his message will be
taken as a joke.
For its part, the Government argues that Section
875(c) should be read in light of its neighboring provisions,
Sections 875(b) and 875(d). Those provisions also prohibit certain
types of threats, but expressly include a mental state requirement
of an “intent to extort.” See 18 U. S. C.
§875(b) (proscribing threats to injure or kidnap made
“with intent to extort”); §875(d) (proscribing
threats to property or reputation made “with intent to
extort”). According to the Government, the express
“intent to extort” requirements in Sections 875(b) and
(d) should preclude courts from implying an unexpressed
“intent to threaten” requirement in Section 875(c). See
Russello v. United States, 464 U. S. 16, 23
(1983) (“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”).
The Government takes this expressio unius est
exclusio alterius canon too far. The fact that Congress
excluded the requirement of an “intent to extort” from
Section 875(c) is strong evidence that Congress did not mean to
confine Section 875(c) to crimes of extortion. But that does not
suggest that Congress, at the same time, also meant to exclude a
requirement that a defendant act with a certain mental state in
communicating a threat. The most we can conclude from the language
of Section 875(c) and its neighboring provisions is that Congress
meant to proscribe a broad class of threats in Section 875(c), but
did not iden-tify what mental state, if any, a defendant must have
to be convicted.
In sum, neither Elonis nor the Government has
identified any indication of a particular mental state requirement
in the text of Section 875(c).
B
The fact that the statute does not specify any
required mental state, however, does not mean that none exists. We
have repeatedly held that “mere omission from a criminal
enactment of any mention of criminal intent” should not be
read “as dispensing with it.” Morissette v.
United States, 342 U. S. 246, 250 (1952) . This rule of
construction reflects the basic principle that “wrongdoing
must be conscious to be criminal.” Id., at 252.
As Justice Jackson explained, this principle is “as universal
and persistent in mature systems of law as belief in freedom of the
human will and a consequent ability and duty of the normal
individual to choose between good and evil.” Id., at
250. The “central thought” is that a defendant must be
“blameworthy in mind” before he can be found guilty, a
concept courts have expressed over time through various terms such
as mens rea, scienter, malice aforethought, guilty
knowledge, and the like. Id., at 252; 1 W. LaFave,
Substantive Criminal Law §5.1, pp. 332–333 (2d ed.
2003). Although there are exceptions, the “general
rule” is that a guilty mind is “a necessary element in
the indictment and proof of every crime.” United
States v. Balint, 258 U. S. 250, 251 (1922) . We
therefore generally “interpret[ ] criminal statutes to
include broadly applicable scienter requirements, even where the
statute by its terms does not contain them.” United
States v. X-Citement Video, Inc., 513 U. S. 64, 70
(1994) .
This is not to say that a defendant must know
that his conduct is illegal before he may be found guilty. The
familiar maxim “ignorance of the law is no excuse”
typi-cally holds true. Instead, our cases have explained that a
defendant generally must “know the facts that make his
conduct fit the definition of the offense,” Staples v.
United States, 511 U. S. 600 , n. 3 (1994), even
if he does not know that those facts give rise to a crime.
Morissette, for example, involved an
individual who had taken spent shell casings from a Government
bombing range, believing them to have been abandoned. Dur-ing his
trial for “knowingly convert[ing]” property of the
United States, the judge instructed the jury that the only question
was whether the defendant had knowingly taken the property without
authorization. 342 U. S., at 248–249. This Court
reversed the defendant’s conviction, ruling that he had to
know not only that he was taking the casings, but also that someone
else still had property rights in them. He could not be found
liable “if he truly believed [the casings] to be
abandoned.” Id., at 271; see id., at 276.
By the same token, in Liparota v.
United States, we considered a statute making it a crime to
knowingly possess or use food stamps in an unauthorized manner. 471
U. S. 419, 420 (1985) . The Government’s argument,
similar to its position in this case, was that a defendant’s
conviction could be upheld if he knowingly possessed or used the
food stamps, and in fact his possession or use was unauthorized.
Id., at 423. But this Court rejected that interpretation of
the statute, because it would have criminalized “a broad
range of apparently innocent conduct” and swept in
individuals who had no knowledge of the facts that made their
conduct blameworthy. Id., at 426. For example, the statute
made it illegal to use food stamps at a store that charged higher
prices to food stamp customers. Without a mental state requirement
in the statute, an individual who unwittingly paid higher prices
would be guilty under the Government’s interpretation.
Ibid. The Court noted that Congress could have
intended to cover such a “broad range of conduct,” but
declined “to adopt such a sweeping interpretation” in
the absence of a clear indication that Congress intended that
result. Id., at 427. The Court instead construed the statute
to require knowledge of the facts that made the use of the food
stamps unauthorized. Id., at 425.
To take another example, in Posters
‘N’ Things, Ltd. v. United States, this
Court interpreted a federal statute prohibiting the sale of drug
paraphernalia. 511 U. S. 513 (1994) . Whether the items in
question qualified as drug paraphernalia was an objective question
that did not depend on the defendant’s state of mind.
Id., at 517–522. But, we held, an individual could not
be convicted of selling such paraphernalia unless he “knew
that the items at issue [were] likely to be used with illegal
drugs.” Id., at 524. Such a showing was necessary to
establish the defendant’s culpable state of mind.
And again, in X-Citement Video, we
considered a statute criminalizing the distribution of visual
depictions of minors engaged in sexually explicit conduct. 513
U. S., at 68. We rejected a reading of the statute which would
have required only that a defendant knowingly send the prohibited
materials, regardless of whether he knew the age of the performers.
Id., at 68–69. We held instead that a defendant must
also know that those depicted were minors, because that was
“the crucial element separating legal innocence from wrongful
conduct.” Id., at 73. See also Staples, 511
U. S., at 619 (defendant must know that his weapon had
automatic firing capability to be convicted of possession of such a
weapon).
When interpreting federal criminal statutes that
are silent on the required mental state, we read into the statute
“only that mens rea which is necessary to separate
wrongful conduct from ‘otherwise innocent
conduct.’ ” Carter v. United States,
530 U. S. 255, 269 (2000) (quoting X-Citement Video,
513 U. S., at 72). In some cases, a general requirement that a
defendant act knowingly is itself an adequate safeguard. For
example, in Carter, we considered whether a conviction under
18 U. S. C. §2113(a), for taking “by force and
violence” items of value belonging to or in the care of a
bank, requires that a defendant have the intent to steal. 530
U. S., at 261. We held that once the Government proves the
defendant forcibly took the money, “the concerns underlying
the presumption in favor of scienter are fully satisfied, for a
forceful taking—even by a defendant who takes under a
good-faith claim of right—falls outside the realm of
. . . ‘otherwise innocent’ ”
conduct. Id., at 269–270. In other instances, however,
requiring only that the defendant act knowingly “would fail
to protect the innocent actor.” Id., at 269. A statute
similar to Section 2113(a) that did not require a forcible taking
or the intent to steal “would run the risk of punishing
seemingly innocent conduct in the case of a defendant who peaceably
takes money believing it to be his.” Ibid. In such a
case, the Court explained, the statute “would need to be read
to require . . . that the defendant take the
money with ‘intent to steal or purloin.’ ”
Ibid.
C
Section 875(c), as noted, requires proof that
a communication was transmitted and that it contained a threat. The
“presumption in favor of a scienter requirement should apply
to each of the statutory elements that criminalize otherwise
innocent conduct.” X-Citement Video, 513 U. S.,
at 72 (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. The mental state
requirement must therefore apply to the fact that the communication
contains a threat.
Elonis’s conviction, however, was premised
solely on how his posts would be understood by a reasonable person.
Such a “reasonable person” standard is a familiar
feature of civil liability in tort law, but is inconsistent with
“the conventional requirement for criminal
conduct—awareness of some wrongdoing.”
Staples, 511 U. S., at 606–607 (quoting United
States v. Dotterweich, 320 U. S. 277, 281 (1943) ;
emphasis added). Having liability turn on whether a
“reasonable person” regards the communication as a
threat—regardless of what the defendant
thinks—“reduces culpability on the all-important
element of the crime to negligence,” Jeffries, 692
F. 3d, at 484 (Sutton, J., dubitante), and we
“have long been reluctant to infer that a negligence standard
was intended in criminal statutes,” Rogers v.
United States, 422 U. S. 35, 47 (1975) (Marshall, J.,
concurring) (citing Morissette, 342 U. S. 246 ). See 1
C. Torcia, Wharton’s Criminal Law §27,
pp. 171–172 (15th ed. 1993); Cochran v. United
States, 157 U. S. 286, 294 (1895) (defendant could face
“liability in a civil action for negligence, but he could
only be held criminally for an evil intent actually existing in his
mind”). Under these principles, “what [Elonis]
thinks” does matter. App. 286.
The Government is at pains to characterize its
position as something other than a negligence standard, emphasizing
that its approach would require proof that a defendant
“comprehended [the] contents and context” of the
communication. Brief for United States 29. The Government gives two
examples of individuals who, in its view, would lack this necessary
mental state—a “foreigner, ignorant of the English
language,” who would not know the meaning of the words at
issue, or an individual mailing a sealed envelope without knowing
its contents. Ibid. But the fact that the Government would
require a defendant to actu-ally know the words of and
circumstances surrounding a communication does not amount to a
rejection of negligence. Criminal negligence standards often
incorporate “the circumstances known” to a defendant.
ALI, Model Penal Code §2.02(2)(d) (1985). See id.,
Comment 4, at 241; 1 LaFave, Substantive Criminal Law §5.4, at
372–373. Courts then ask, however, whether a reasonable
person equipped with that knowledge, not the actual defendant,
would have recognized the harmfulness of his conduct. That is
precisely the Government’s position here: Elonis can be
convicted, the Government contends, if he himself knew the contents
and context of his posts, and a reason-able person would have
recognized that the posts would be read as genuine threats. That is
a negligence standard.
In support of its position the Government relies
most heavily on Hamling v. United States, 418
U. S. 87 (1974) . In that case, the Court rejected the
argument that individuals could be convicted of mailing obscene
material only if they knew the “legal status of the
materials” distributed. Id., at 121. Absolving a
defendant of liability because he lacked the knowledge that the
materials were legally obscene “would permit the defendant to
avoid prosecution by simply claiming that he had not brushed up on
the law.” Id., at 123. It was instead enough for
liability that “a defendant had knowledge of the contents of
the materials he distributed, and that he knew the character and
nature of the materials.” Ibid.
This holding does not help the Government. In
fact, the Court in Hamling approved a state court’s
conclusion that requiring a defendant to know the character of the
material incorporated a “vital element of scienter” so
that “not innocent but calculated purveyance of filth
. . . is exorcised.” Id., at 122 (quoting
Mishkin v. New York, 383 U. S. 502, 510 (1966) ;
internal quotation marks omitted). In this case, “calculated
purveyance” of a threat would require that Elonis know the
threatening nature of his communication. Put simply, the mental
state requirement the Court approved in Hamling turns on
whether a defendant knew the character of what was sent, not
simply its contents and context.
Contrary to the dissent’s suggestion, see
post, at 4–5, 9–10 (opinion of Thomas, J.),
nothing in Rosen v. United States, 161 U. S. 29
(1896) , undermines this reading. The defendant’s contention
in Rosen was that his indictment for mailing obscene
material was invalid because it did not allege that he was aware of
the contents of the mailing. Id., at 31–33. That is
not at issue here; there is no dispute that Elonis knew the words
he communicated. The defendant also argued that he could not be
convicted of mailing obscene material if he did not know that the
material “could be properly or justly characterized as
obscene.” Id., at 41. The Court correctly rejected
this “ignorance of the law” defense; no such contention
is at issue here. See supra, at 10.
* * *
In light of the foregoing, Elonis’s
conviction cannot stand. The jury was instructed that the
Government need prove only that a reasonable person would regard
Elonis’s communications as threats, and that was error.
Federal criminal liability generally does not turn solely on the
results of an act without considering the defendant’s mental
state. That understanding “took deep and early root in
American soil” and Congress left it intact here: Under
Section 875(c), “wrongdoing must be conscious to be
criminal.” Morissette, 342 U. S., at 252.
There is no dispute that the mental state
requirement in Section 875(c) is satisfied if the defendant
transmits a communication for the purpose of issuing a threat, or
with knowledge that the communication will be viewed as a threat.
See Tr. of Oral Arg. 25, 56. In response to a question at oral
argument, Elonis stated that a finding of recklessness would not be
sufficient. See id., at 8–9. Neither Elonis nor the
Government has briefed or argued that point, and we accordingly
decline to address it. See Department of Treasury, IRS v.
FLRA, 494 U. S. 922, 933 (1990) (this Court is
“poorly situated” to address an argument the Court of
Appeals did not consider, the parties did not brief, and counsel
addressed in “only the most cursory fashion at oral
argument”). Given our disposition, it is not necessary to
consider any First Amendment issues.
Both Justice Alito and Justice Thomas complain
about our not deciding whether recklessness suffices for liability
under Section 875(c). Post, at 1–2 (Alito, J.,
concurring in part and dissenting in part); post, at
1–2 (opinion of Thomas, J.). Justice Alito contends that each
party “argued” this issue, post, at 2, but they
did not address it at all until oral argument, and even then only
briefly. See Tr. of Oral Arg. at 8, 38–39.
Justice Alito also suggests that we have not
clarified confusion in the lower courts. That is wrong. Our holding
makes clear that negligence is not sufficient to support a
conviction under Section 875(c), contrary to the view of nine
Courts of Appeals. Pet. for Cert. 17. There was and is no circuit
conflict over the question Justice Alito and Justice Thomas would
have us decide—whether recklessness suffices for liability
under Section 875(c). No Court of Appeals has even addressed that
question. We think that is more than sufficient
“justification,” post, at 2 (opinion of Alito,
J.), for us to decline to be the first appellate tribunal to do
so.
Such prudence is nothing new. See United
States v. Bailey, 444 U. S. 394, 407 (1980)
(declining to decide whether mental state of recklessness or
negligence could suffice for criminal liability under 18
U. S. C. §751, even though a “court may
someday confront a case” presenting issue); Ginsberg
v. New York, 390 U. S. 629 –645 (1968) (rejecting
defendant’s challenge to obscenity law “makes it
unnecessary for us to define further today ‘what sort of
mental element is requisite to a constitutionally permissible
prosecution’ ”); Smith v.
California, 361 U. S. 147, 154 (1959) (overturning
conviction because lower court did not require any mental element
under statute, but noting that “[w]e need not and most
definitely do not pass today on what sort of mental element is
requisite to a constitutionally permissible prosecution”);
cf. Gulf Oil Co. v. Bernard, 452 U. S. 89
–104 (1981) (finding a lower court’s order
impermissible under the First Amendment but not deciding
“what standards are mandated by the First Amendment in this
kind of case”).
We may be “capable of deciding the
recklessness issue,” post, at 2 (opinion of Alito,
J.), but following our usual practice of awaiting a decision below
and hearing from the parties would help ensure that we decide it
correctly.
The judgment of the United States Court of
Appeals for the Third Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–983
_________________
ANTHONY DOUGLAS ELONIS, PETITIONER v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the third circuit
[June 1, 2015]
Justice Thomas, dissenting.
We granted certiorari to resolve a conflict in
the lower courts over the appropriate mental state for threat
prosecutions under 18 U. S. C. §875(c). Save two,
every Circuit to have considered the issue—11 in
total—has held that this provision demands proof only of
general intent, which here requires no more than that a defendant
knew he transmitted a communication, knew the words used in that
communication, and understood the ordinary meaning of those words
in the relevant context. The outliers are the Ninth and Tenth
Circuits, which have concluded that proof of an intent to threaten
was necessary for conviction. Adopting the minority position,
Elonis urges us to hold that §875(c) and the First Amendment
require proof of an intent to threaten. The Government in turn
advocates a general-intent approach.
Rather than resolve the conflict, the Court
casts aside the approach used in nine Circuits and leaves nothing
in its place. Lower courts are thus left to guess at the
appropriate mental state for §875(c). All they know after
today’s decision is that a requirement of general intent will
not do. But they can safely infer that a majority of this Court
would not adopt an intent-to-threaten requirement, as the opinion
carefully leaves open the possibility that recklessness may be
enough. See ante, at 16–17.
This failure to decide throws everyone from
appellate judges to everyday Facebook users into a state of
uncertainty. This uncertainty could have been avoided had we simply
adhered to the background rule of the common law favoring general
intent. Although I am sympathetic to my colleagues’ policy
concerns about the risks associated with threat prosecutions, the
answer to such fears is not to discard our traditional approach to
state-of-mind requirements in criminal law. Because the Court of
Appeals properly applied the general-intent standard, and because
the communications transmitted by Elonis were “true
threats” unprotected by the First Amendment, I would affirm
the judgment below.
I
A
Enacted in 1939, §875(c) provides,
“Whoever transmits in interstate or foreign commerce any
communication containing any threat to kidnap any person or any
threat to injure the person of another, shall be fined under this
title or imprisoned not more than five years, or both.”
Because §875(c) criminalizes speech, the First Amendment
requires that the term “threat” be limited to a narrow
class of historically unprotected communications called “true
threats.” To qualify as a true threat, a communication must
be a serious expression of an intention to commit unlawful physical
violence, not merely “political hyperbole”;
“vehement, caustic, and sometimes unpleasantly sharp
attacks”; or “vituperative, abusive, and inexact”
statements. Watts v. United States, 394 U. S.
705, 708 (1969) (per curiam) (internal quotation marks
omitted). It also cannot be determined solely by the reaction of
the recipient, but must instead be “determined by the
interpretation of a reasonable recipient familiar with the
context of the communication,” United States v.
Darby, 37 F. 3d 1059, 1066 (CA4 1994) (emphasis added),
lest historically protected speech be suppressed at the will of an
eggshell observer, cf. Cox v. Louisiana, 379
U. S. 536, 551 (1965) (“[C]onstitutional rights may not
be denied simply because of hostility to their assertion or
exercise” (internal quotation marks omitted)). There is thus
no dispute that, at a minimum, §875(c) requires an objective
showing: The communication must be one that “a reasonable
observer would construe as a true threat to another.”
United States v. Jeffries, 692 F. 3d 473, 478
(CA6 2012). And there is no dispute that the posts at issue here
meet that objective standard.
The only dispute in this case is about the state
of mind necessary to convict Elonis for making those posts. On its
face, §875(c) does not demand any particular mental state. As
the Court correctly explains, the word “threat” does
not itself contain a mens rea requirement. See ante,
at 8–9. But because we read criminal statutes “in light
of the background rules of the common law, in which the requirement
of some mens rea for a crime is firmly embedded,” we
require “some indication of congressional intent, express or
implied, . . . to dispense with mens rea as an
element of a crime.” Staples v. United States,
511 U. S. 600 –606 (1994) (citation omitted). Absent
such indicia, we ordinarily apply the “presumption in favor
of scienter” to require only “proof of general
intent—that is, that the defendant [must] posses[s]
knowledge with respect to the actus reus of the
crime.” Carter v. United States, 530 U. S.
255, 268 (2000) .
Under this “conventional mens rea
element,” “the defendant [must] know the facts that
make his conduct illegal,” Staples, supra, at 605, but
he need not know that those facts make his conduct illegal.
It has long been settled that “the knowledge requisite to
knowing violation of a statute is factual knowledge as
distinguished from knowledge of the law.” Bryan v.
United States, 524 U. S. 184, 192 (1998) (internal
quotation marks omitted). For instance, in Posters
‘N’ Things, Ltd. v. United States, 511
U. S. 513 (1994) , the Court addressed a conviction for
selling drug paraphernalia under a statute forbidding anyone to
“ ‘make use of the services of the Postal Service
or other interstate conveyance as part of a scheme to sell drug
paraphernalia,’ ” id., at 516 (quoting 21
U. S. C. §857(a)(1) (1988 ed.)). In applying the
presumption in favor of scienter, the Court concluded that
“although the Government must establish that the defendant
knew that the items at issue are likely to be used with illegal
drugs, it need not prove specific knowledge that the items are
‘drug paraphernalia’ within the meaning of the
statute.” 511 U. S., at 524.
Our default rule in favor of general intent
applies with full force to criminal statutes addressing speech.
Well over 100 years ago, this Court considered a conviction under a
federal obscenity statute that punished anyone
“ ‘who shall knowingly deposit, or cause to be
deposited, for mailing or delivery,’ ” any
“ ‘obscene, lewd, or lascivious book, pamphlet,
picture, paper, writing, print, or other publication of an indecent
character.’ ” Rosen v. United
States, 161 U. S. 29, 30 (1896) (quoting Rev. Stat.
§3893). In that case, as here, the defendant argued that, even
if “he may have had . . . actual knowledge or
notice of [the paper’s] contents” when he put it in the
mail, he could not “be convicted of the offence . . .
unless he knew or believed that such paper could be properly or
justly characterized as obscene, lewd, and lascivious.” 161
U. S., at 41. The Court rejected that theory,
concluding that if the material was actually obscene and
“deposited in the mail by one who knew or had notice at the
time of its contents, the offence is complete, although the
defendant himself did not regard the paper as one that the statute
forbade to be carried in the mails.” Ibid. As the
Court explained, “Congress did not intend that the question
as to the character of the paper should depend upon the opinion or
belief of the person who, with knowledge or notice of [the
paper’s] contents, assumed the responsibility of putting it
in the mails of the United States,” because “[e]very
one who uses the mails of the United States for carrying papers or
publications must take notice of . . . what must be
deemed obscene, lewd, and lascivious.” Id., at
41–42.
This Court reaffirmed Rosen’s
holding in Hamling v. United States, 418 U. S.
87 (1974) , when it considered a challenge to convictions under the
successor federal statute, see id., at 98, n. 8 (citing
18 U. S. C. §1461 (1970 ed.)). Relying on
Rosen, the Court rejected the argument that the statute
required “proof both of knowledge of the contents of the
material and awareness of the obscene character of the
material.” 418 U. S., at 120 (internal quotation
marks omitted). In approving the jury instruction that the
defendants’ “belief as to the obscenity or
non-obscenity of the material is irrelevant,” the Court
declined to hold “that the prosecution must prove a
defendant’s knowledge of the legal status of the materials he
distributes.” Id., at 120–121 (internal
quotation marks omitted). To rule otherwise, the Court observed,
“would permit the defendant to avoid prosecution by simply
claiming that he had not brushed up on the law.” Id.,
at 123.
Decades before §875(c)’s enactment,
courts took the same approach to the first federal threat statute,
which prohibited threats against the President. In 1917, Congress
enacted a law punishing anyone
“who knowingly and willfully
deposits or causes to be deposited for conveyance in the mail
. . . any letter, paper, writing, print, missive, or
document containing any threat to take the life of or to inflict
bodily harm upon the President of the United States, or who
knowingly and willfully otherwise makes any such threat against the
President.” Act of Feb. 14, 1917, ch. 64, 39Stat. 919.
Courts applying this statute shortly after its
enactment appeared to require proof of only general intent. In
Ragansky v. United States, 253 F. 643 (CA7 1918), for
instance, a Court of Appeals held that “[a] threat is
knowingly made, if the maker of it comprehends the meaning of the
words uttered by him,” and “is willfully made, if in
addition to comprehending the meaning of his words, the maker
voluntarily and intentionally utters them as the declaration of an
apparent determination to carry them into execution,”
id., at 645. The court consequently rejected the
defendant’s argument that he could not be convicted when his
language “[c]oncededly . . . constituted such a
threat” but was meant only “as a joke.”
Id., at 644. Likewise, in United States v.
Stobo, 251 F. 689 (Del. 1918), a District Court rejected the
defendant’s objection that there was no allegation “of
any facts . . . indicating any intention . . .
on the part of the defendant . . . to menace the
President of the United States,” id., at 693 (internal
quotation marks omitted). As it explained, the defendant “is
punishable under the act whether he uses the words lightly or with
a set purpose to kill,” as “[t]he effect upon the minds
of the hearers, who cannot read his inward thoughts, is precisely
the same.” Ibid. At a minimum, there is no historical
practice requiring more than general intent when a statute
regulates speech.
B
Applying ordinary rules of statutory
construction, I would read §875(c) to require proof of general
intent. To “know the facts that make his conduct
illegal” under §875(c), see Staples, 511
U. S., at 605, a defendant must know that he
transmitted a communication in interstate or foreign commerce that
contained a threat. Knowing that the communication contains a
“threat”—a serious expression of an intention to
engage in unlawful physical violence—does not, however,
require knowing that a jury will conclude that the communication
contains a threat as a matter of law. Instead, like one who mails
an “obscene” publication and is prosecuted under the
federal obscenity statute, a defendant prosecuted under
§875(c) must know only the words used in that communication,
along with their ordinary meaning in context.
General intent divides those who know the facts
constituting the actus reus of this crime from those who do
not. For example, someone who transmits a threat who does not know
English—or who knows English, but perhaps does not know a
threatening idiom—lacks the general intent required under
§875(c). See Ragansky, supra, at 645 (“[A]
foreigner, ignorant of the English language, repeating
[threatening] words without knowledge of their meaning, may not
knowingly have made a threat”). Likewise, the hapless mailman
who delivers a threatening letter, ignorant of its contents, should
not fear prosecution. A defendant like Elonis, however, who admits
that he “knew that what [he] was saying was violent”
but supposedly “just wanted to express [him]self,” App.
205, acted with the general intent required under §875(c),
even if he did not know that a jury would conclude that his
communication constituted a “threat” as a matter of
law.
Demanding evidence only of general intent also
corresponds to §875(c)’s statutory backdrop. As
previously discussed, before the enactment of §875(c), courts
had read the Presidential threats statute to require proof only of
general intent. Given Congress’ presumptive awareness of this
application of the Presidential threats statute—not to
mention this Court’s similar approach in the obscenity
context, see Rosen, 161 U. S., at
41–42—it is difficult to conclude that the Congress
that enacted §875(c) in 1939 understood it to contain an
implicit mental-state requirement apart from general intent. There
is certainly no textual evidence to support this conclusion. If
anything, the text supports the opposite inference, as
§875(c), unlike the Presidential threats statute, contains no
reference to knowledge or willfulness. Nothing in the statute
suggests that Congress departed from the “conventional
mens rea element” of general intent, Staples,
supra, at 605; I would not impose a higher mental-state
requirement here.
C
The majority refuses to apply these ordinary
background principles. Instead, it casts my application of general
intent as a negligence standard disfavored in the criminal law.
Ante, at 13–16. But that characterization misses the
mark. Requiring general intent in this context is not the same as
requiring mere negligence. Like the mental-state requirements
adopted in many of the cases cited by the Court, general intent
under §875(c) prevents a defendant from being convicted on the
basis of any fact beyond his awareness. See, e.g.,
United States v. X-Citement Video, Inc., 513
U. S. 64, 73 (1994) (knowledge of age of persons depicted in
explicit materials); Staples, supra, at 614–615
(knowledge of firing capability of weapon); Morissette v.
United States, 342 U. S. 246 –271 (1952)
(knowledge that property belonged to another). In other words, the
defendant must know—not merely be reckless or
negligent with respect to the fact—that he is committing the
acts that constitute the actus reus of the offense.
But general intent requires no mental
state (not even a negligent one) concerning the “fact”
that certain words meet the legal definition of a threat.
That approach is particularly appropriate where, as here, that
legal status is determined by a jury’s application of the
legal standard of a “threat” to the contents of a
communication. And convicting a defendant despite his ignorance of
the legal—or objective—status of his conduct does not
mean that he is being punished for negligent conduct. By way of
example, a defendant who is convicted of murder despite claiming
that he acted in self-defense has not been penalized under a
negligence standard merely because he does not know that the jury
will reject his argument that his “belief in the necessity of
using force to prevent harm to himself [was] a reasonable
one.” See 2 W. LaFave, Substantive Criminal Law
§10.4(c), p. 147 (2d ed. 2003).
The Court apparently does not believe that our
traditional approach to the federal obscenity statute involved a
negligence standard. It asserts that Hamling “approved
a state court’s conclusion that requiring a defendant to know
the character of the material incorporated a ‘vital element
of scienter’ so that ‘not innocent but calculated
purveyance of filth . . . is
exorcised.’ ” Ante, at 15 (quoting
Hamling, 418 U. S., at 122 (in turn quoting
Mishkin v. New York, 383 U. S. 502, 510 (1966)
). According to the Court, the mental state approved in
Hamling thus “turns on whether a defendant knew the
character of what was sent, not simply its contents and
context.” Ante, at 15. It is unclear what the Court
means by its distinction between “character” and
“contents and context.” “Character” cannot
mean legal obscenity, as Hamling rejected the
argument that a defendant must have “awareness of the obscene
character of the material.” 418 U. S., at 120 (internal
quotation marks omitted). Moreover, this discussion was not part of
Hamling’s holding, which was primarily a reaffirmation
of Rosen. See 418 U. S., at 120–121; see
also Posters ’N’ Things, 511 U. S.,
at 524–525 (characterizing Hamling as holding that a
“statute prohibiting mailing of obscene materials does not
require proof that [the] defendant knew the materials at issue met
the legal definition of ‘obscenity’ ”).
The majority’s treatment of Rosen
is even less persuasive. To shore up its position, it asserts that
the critical portion of Rosen rejected an
“ ‘ignorance of the law’ defense,” and
claims that “no such contention is at issue here.”
Ante, at 15. But the thrust of Elonis’ challenge is
that a §875(c) conviction cannot stand if the
defendant’s subjective belief of what constitutes a
“threat” differs from that of a reasonable jury. That
is akin to the argument the defendant made—and lost—in
Rosen. That defendant insisted that he could not be
convicted for mailing the paper “unless he knew or believed
that such paper could be properly or justly characterized as
obscene.” 161 U. S., at 41. The Court, however, held
that the Government did not need to show that the defendant
“regard[ed] the paper as one that the statute forbade to be
carried in the mails,” because the obscene character of the
material did not “depend upon the opinion or belief of the
person who . . . assumed the responsibility of putting it
in the mails.” Ibid. The majority’s muddying of
the waters cannot obscure the fact that today’s decision is
irreconcilable with Rosen and Hamling.
D
The majority today at least refrains from
requiring an intent to threaten for §875(c) convictions, as
Elonis asks us to do. Elonis contends that proof of a
defendant’s intent to put the recipient of a threat in fear
is necessary for conviction, but that element cannot be found
within the statutory text. “[W]e ordinarily resist reading
words or elements into a statute that do not appear on its
face,” including elements similar to the one Elonis proposes.
E.g., Bates v. United States, 522 U. S. 23, 29
(1997) (declining to read an “intent to defraud”
element into a criminal statute). As the majority correctly
explains, nothing in the text of §875(c) itself requires proof
of an intent to threaten. See ante, at 8–9. The
absence of such a requirement is significant, as Congress knows how
to require a heightened mens rea in the context of threat
offenses. See §875(b) (providing for the punishment of
“[w]hoever, with intent to extort . . . , transmits
in interstate or foreign commerce any communication containing any
threat to kidnap any person or any threat to injure the person of
another”); see also §119 (providing for the punishment
of “[w]hoever knowingly makes restricted personal information
about [certain officials] . . . publicly available
. . . with the intent to threaten”).
Elonis nonetheless suggests that an
intent-to-threaten element is necessary in order to avoid the risk
of punishing innocent conduct. But there is nothing absurd about
punishing an individual who, with knowledge of the words he uses
and their ordinary meaning in context, makes a threat. For
instance, a high-school student who sends a letter to his principal
stating that he will massacre his classmates with a machine gun,
even if he intended the letter as a joke, cannot fairly be
described as engaging in innocent conduct. But see ante, at
4–5, 16 (concluding that Elonis’ conviction under
§875(c) for discussing a plan to “ ‘initiate
the most heinous school shooting ever imagined’ ”
against “ ‘a Kindergarten
class’ ” cannot stand without proof of some
unspecified heightened mental state).
Elonis also insists that we read an
intent-to-threaten element into §875(c) in light of the First
Amendment. But our practice of construing statutes “to avoid
constitutional questions . . . is not a license for the
judiciary to rewrite language enacted by the legislature,”
Salinas v. United States, 522 U. S. 52 –60
(1997) (internal quotation marks omitted), and ordinary background
principles of criminal law do not support rewriting §875(c) to
include an intent-to-threaten requirement. We have not altered our
traditional approach to mens rea for other constitutional
provisions. See, e.g., Dean v. United States, 556
U. S. 568 –574 (2009) (refusing to read an
intent-to-discharge-the-firearm element into a mandatory minimum
provision concerning the discharge of a firearm during a particular
crime). The First Amendment should be treated no differently.
II
In light of my conclusion that Elonis was
properly convicted under the requirements of §875(c), I must
address his argument that his threatening posts were nevertheless
protected by the First Amendment.
A
Elonis does not contend that threats are
constitutionally protected speech, nor could he: “From 1791
to the present, . . . our society . . . has
permitted restrictions upon the content of speech in a few limited
areas,” true threats being one of them. R. A. V. v.
St. Paul, 505 U. S. 377 –383 (1992); see
id., at 388. Instead, Elonis claims that only
intentional threats fall within this particular historical
exception.
If it were clear that intentional threats alone
have been punished in our Nation since 1791, I would be inclined to
agree. But that is the not the case. Although the Federal
Government apparently did not get into the business of regulating
threats until 1917, the States have been doing so since the late
18th and early 19th centuries. See, e.g., 1795 N. J.
Laws p. 108; Ill. Rev. Code of Laws, Crim. Code §108 (1827)
(1827 Ill. Crim. Code); 1832 Fla. Laws pp. 68–69. And that
practice continued even after the States amended their
constitutions to include speech protections similar to those in the
First Amendment. See, e.g., Fla. Const., Art. I,
§5 (1838); Ill. Const., Art. VIII, §22 (1818), Mich.
Const., Art. I, §7 (1835); N. J. Const.,
Art. I, §5 (1844); J. Hood, Index of Colonial and State
Laws of New Jersey 1203, 1235, 1257, 1265 (1905); 1 Ill. Stat., ch.
30, div. 9, §31 (3d ed. 1873). State practice thus provides at
least some evidence of the original meaning of the phrase
“freedom of speech” in the First Amendment. See
Roth v. United States, 354 U. S. 476 –483
(1957) (engaging in a similar inquiry with respect to
obscenity).
Shortly after the founding, several States and
Territories enacted laws making it a crime to “knowingly send
or deliver any letter or writing, with or without a name subscribed
thereto, or signed with a fictitious name, . . .
threatening to maim, wound, kill or murder any person, or to burn
his or her [property], though no money, goods or chattels, or other
valuable thing shall be demanded,” e.g., 1795
N. J. Laws §57, at 108; see also, e.g., 1816 Ga.
Laws p. 178; 1816 Mich. Territory Laws p. 128; 1827 Ill. Crim. Code
§108; 1832 Fla. Laws, at 68–69. These laws appear to be
the closest early analogue to §875(c), as they penalize
transmitting a communication containing a threat without proof of a
demand to extort something from the victim. Threat provisions
explicitly requiring proof of a specific “intent to
extort” appeared alongside these laws, see, e.g., 1795
N. J. Laws §57, at 108, but those provisions are simply
the predecessors to §875(b) and §875(d), which likewise
expressly contain an intent-to-extort requirement.
The laws without that extortion requirement were
copies of a 1754 English threat statute subject to only a
general-intent requirement. The statute made it a capital offense
to “knowingly send any Letter without any Name subscribed
thereto, or signed with a fictitious Name . . .
threatening to kill or murder any of his Majesty’s Subject or
Subjects, or to burn their [property], though no Money or Venison
or other valuable Thing shall be demanded.” 27 Geo. II, ch.
15, in 7 Eng. Stat. at Large 61 (1754); see also 4 W. Blackstone,
Commentaries on the Laws of England 144 (1768) (describing this
statute). Early English decisions applying this threat statute
indicated that the appropriate mental state was general intent. In
King v. Girdwood, 1 Leach 142, 168 Eng. Rep. 173 (K.
B. 1776), for example, the trial court instructed the jurors that,
“if they were of opinion that” the “terms of the
letter conveyed an actual threat to kill or murder,”
“and that the prisoner knew the contents of it, they ought to
find him guilty; but that if they thought he did not know the
contents, or that the words might import any thing less than to
kill or murder, they ought to acquit,” id., at 143,
168 Eng. Rep., at 173. On appeal following conviction, the judges
“thought that the case had been properly left to the
Jury.” Ibid., 168 Eng. Rep., at 174. Other cases
likewise appeared to consider only the import of the letter’s
language, not the intent of its sender. See, e.g.,
Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng.
Rep. 826, 827 (K. B. 1831) (concluding that an indictment was
sufficient because “th[e] letter very plainly conveys a
threat to kill and murder” and “[n]o one who received
it could have any doubt as to what the writer meant to
threaten”); see also 2 E. East, A Treatise of the Pleas of
the Crown 1116 (1806) (discussing Jepson and
Springett’s Case, in which the judges disagreed over
whether “the letter must be understood as . . .
importing a threat” and whether that was “a necessary
construction”).
Unsurprisingly, these early English cases were
well known in the legal world of the 19th century United States.
For instance, Nathan Dane’s A General Abridgement of American
Law—“a necessary adjunct to the library of every
American lawyer of distinction,” 1 C. Warren, History of the
Harvard Law School and of Early Legal Conditions in America 414
(1908)—discussed the English threat statute and summarized
decisions such as Girdwood. 7 N. Dane, A General Abridgement
of American Law 31–32 (1824). And as this Court long ago
recognized, “It is doubtless true . . . that where
English statutes . . . have been adopted into our own
legislation; the known and settled construction of those statutes
by courts of law, has been considered as silently incorporated into
the acts, or has been received with all the weight of
authority.” Pennock v. Dialogue, 2 Pet. 1, 18
(1829); see also, e.g., Commonwealth v. Burdick, 2
Pa. 163, 164 (1846) (considering English cases persuasive authority
in interpreting similar state statute creating the offense of
obtaining property through false pretenses). In short, there is
good reason to believe that States bound by their own Constitutions
to protect freedom of speech long ago enacted general-intent threat
statutes.
Elonis disputes this historical analysis on two
grounds, but neither is persuasive. He first points to a treatise
stating that the 1754 English statute was “levelled against
such whose intention it was, (by writing such letters, either
without names or in fictitious names,) to conceal themselves from
the knowledge of the party threatened, that they might obtain their
object by creating terror in [the victim’s] mind.” 2 W.
Russell & D. Davis, A Treatise on Crimes & Misdemeanors
1845 (1st Am. ed. 1824). But the fact that the ordinary prosecution
under this provision involved a defendant who intended to cause
fear does not mean that such a mental state was required as
a matter of law. After all, §875(c) is frequently deployed
against people who wanted to cause their victims fear, but that
fact does not answer the legal question presented in this case.
See, e.g., United States v. Sutcliffe, 505 F. 3d
944, 952 (CA9 2007); see also Tr. of Oral Arg. 53 (counsel for the
Government noting that “I think Congress would well have
understood that the majority of these cases probably [involved]
people who intended to threaten”).
Elonis also cobbles together an assortment of
older American authorities to prove his point, but they fail to
stand up to close scrutiny. Two of his cases address the offense of
breaching the peace, Ware v. Loveridge, 75 Mich. 488,
490–493, 42 N. W. 997, 998 (1889); State v.
Benedict, 11 Vt. 236, 239 (1839), which is insufficiently
similar to the offense criminalized in §875(c) to be of much
use. Another involves a prosecution under a blackmailing statute
similar to §875(b) and §875(c) in that it expressly
required an “intent to extort.” Norris v.
State, 95 Ind. 73, 74 (1884). And his treatises do not
clearly distinguish between the offense of making threats with the
intent to extort and the offense of sending threatening letters
without such a requirement in their discussions of threat statutes,
making it difficult to draw strong inferences about the latter
category. See 2 J. Bishop, Commentaries on the Criminal Law
§1201, p. 664, and nn. 5–6 (1877); 2 J. Bishop,
Commentaries on the Law of Criminal Procedure §975, p. 546
(1866); 25 The American and English Encyclopædia of Law 1073
(C. Williams ed. 1894).
Two of Elonis’ cases appear to discuss an
offense of sending a threatening letter without an intent to
extort, but even these fail to make his point. One notes in passing
that character evidence is admissible “to prove guilty
knowledge of the defendant, when that is an essential element
of the crime; that is, the quo animo, the intent or
design,” and offers as an example that in the context of
“sending a threatening letter, . . . prior and
subsequent letters to the same person are competent in order to
show the intent and meaning of the particular letter in
question.” State v. Graham, 121 N. C. 623,
627, 28 S. E. 409, 409 (1897). But it is unclear from that
statement whether that court thought an intent to threaten
was required, especially as the case it cited for this
proposition—Rex v. Boucher, 4 Car. & P.
562, 563, 172 Eng. Rep. 826, 827 (K. B. 1831)—supports a
general-intent approach. The other case Elonis cites involves a
statutory provision that had been judicially limited to
“ ‘pertain to one or the other acts which are
denounced by the statute,’ ” namely, terroristic
activities carried out by the Ku Klux Klan. Commonwealth v.
Morton, 140 Ky. 628, 630, 131 S. W. 506, 507 (1910)
(quoting Commonwealth v. Patrick, 127 Ky. 473, 478,
105 S. W. 981, 982 (1907)). That case thus provides scant
historical support for Elonis’ position.
B
Elonis also insists that our precedents
require a mental state of intent when it comes to threat
prosecutions under §875(c), primarily relying on Watts,
394 U. S. 705 , and Virginia v. Black, 538
U. S. 343 (2003) . Neither of those decisions, however,
addresses whether the First Amendment requires a particular mental
state for threat prosecutions.
As Elonis admits, Watts expressly
declined to address the mental state required under the First
Amendment for a “true threat.” See 394 U. S., at
707–708. True, the Court in Watts noted “grave
doubts” about Raganksy’s construction of
“willfully” in the presidential threats statute. 394
U. S., at 707–708. But “grave doubts”
do not make a holding, and that stray statement in Watts is
entitled to no precedential force. If anything, Watts
continued the long tradition of focusing on objective criteria in
evaluating the mental requirement. See ibid.
The Court’s fractured opinion in
Black likewise says little about whether an
intent-to-threaten requirement is constitutionally mandated here.
Black concerned a Virginia cross-burning law that expressly
required “ ‘an intent to intimidate a person or
group of persons,’ ” 538 U. S., at 347
(quoting Va. Code Ann. §18.2–423 (1996)), and the Court
thus had no occasion to decide whether such an element was
necessary in threat provisions silent on the matter. Moreover, the
focus of the Black decision was on the statutory presumption
that “any cross burning [w]as prima facie evidence of intent
to intimidate.” 538 U. S., at 347–348. A
majority of the Court concluded that this presumption failed to
distinguish unprotected threats from protected speech because it
might allow convictions “based solely on the fact of cross
burning itself,” including cross burnings in a play or at a
political rally. Id., at 365–366 (plurality opinion);
id., at 386 (Souter, J., concurring in judgment in part and
dissenting in part) (“The provision will thus tend to draw
nonthreatening ideological expression within the ambit of the
prohibition of intimidating expression”). The objective
standard for threats under §875(c), however, helps to avoid
this problem by “forc[ing] jurors to examine the
circumstances in which a statement is made.” Jeffries,
692 F. 3d, at 480.
In addition to requiring a departure from our
precedents, adopting Elonis’ view would make threats one of
the most protected categories of unprotected speech, thereby sowing
tension throughout our First Amendment doctrine. We generally have
not required a heightened mental state under the First Amendment
for historically unprotected categories of speech. For instance,
the Court has indicated that a legislature may constitutionally
prohibit “ ‘fighting words,’ those
personally abusive epithets which, when addressed to the ordinary
citizen, are, as a matter of common knowledge, inherently likely to
provoke violent reaction,” Cohen v. California,
403 U. S. 15, 20 (1971) —without proof of an intent to
provoke a violent reaction. Because the definition of
“fighting words” turns on how the “ordinary
citizen” would react to the language, ibid., this
Court has observed that a defendant may be guilty of a breach of
the peace if he “makes statements likely to provoke violence
and disturbance of good order, even though no such eventuality be
intended,” and that the punishment of such statements
“as a criminal act would raise no question under [the
Constitution],” Cantwell v. Connecticut, 310
U. S. 296 –310 (1940); see also Chaplinsky v.
New Hampshire, 315 U. S. 568 –573 (1942)
(rejecting a First Amendment challenge to a general-intent
construction of a state statute punishing
“ ‘fighting’ words”); State v.
Chaplinsky, 91 N. H. 310, 318, 18 A. 2d 754, 758
(1941) (“[T]he only intent required for conviction
. . . was an intent to speak the words”). The Court
has similarly held that a defendant may be convicted of mailing
obscenity under the First Amendment with-out proof that he knew the
materials were legally obscene. Hamling, 418
U. S., at 120–124. And our precedents allow
liability in tort for false statements about private persons on
matters of private concern even if the speaker acted negligently
with respect to the falsity of those statements. See
Philadelphia Newspapers, Inc. v. Hepps, 475
U. S. 767 –775 (1986). I see no reason why we should
give threats pride of place among unprotected speech.
* * *
There is always a risk that a criminal threat
statute may be deployed by the Government to suppress legitimate
speech. But the proper response to that risk is to adhere to our
traditional rule that only a narrow class of true threats,
historically unprotected, may be constitutionally proscribed.
The solution is not to abandon a mental-state
requirement compelled by text, history, and precedent. Not only
does such a decision warp our traditional approach to mens
rea, it results in an arbitrary distinction between threats and
other forms of unprotected speech. Had Elonis mailed obscene
materials to his wife and a kindergarten class, he could have been
prosecuted irrespective of whether he intended to offend those
recipients or reck-lessly disregarded that possibility. Yet when he
threatened to kill his wife and a kindergarten class, his intent to
terrify those recipients (or reckless disregard of that risk)
suddenly becomes highly relevant. That need not—and should
not—be the case.
Nor should it be the case that we cast aside the
mental-state requirement compelled by our precedents yet offer
nothing in its place. Our job is to decide questions, not create
them. Given the majority’s ostensible concern for protecting
innocent actors, one would have expected it to announce a clear
rule—any clear rule. Its failure to do so reveals the
fractured foundation upon which today’s decision rests.
I respectfully dissent.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–983
_________________
ANTHONY DOUGLAS ELONIS, PETITIONER v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the third circuit
[June 1, 2015]
Justice Alito, concurring in part and
dissenting in part.
In Marbury v. Madison, 1 Cranch
137, 177 (1803), the Court famously proclaimed: “It is
emphatically the province and duty of the judicial department to
say what the law is.” Today, the Court announces: It is
emphatically the prerogative of this Court to say only what the law
is not.
The Court’s disposition of this case is
certain to cause confusion and serious problems. Attorneys and
judges need to know which mental state is required for conviction
under 18 U. S. C. §875(c), an important criminal
statute. This case squarely presents that issue, but the Court
provides only a partial answer. The Court holds that the jury
instructions in this case were defective because they required only
negligence in conveying a threat. But the Court refuses to explain
what type of intent was necessary. Did the jury need to find that
Elonis had the purpose of conveying a true threat? Was it
enough if he knew that his words conveyed such a threat?
Would recklessness suffice? The Court declines to say.
Attorneys and judges are left to guess.
This will have regrettable consequences. While
this Court has the luxury of choosing its docket, lower courts and
juries are not so fortunate. They must actually decide cases, and
this means applying a standard. If purpose or knowledge is needed
and a district court instructs the jury that recklessness suffices,
a defendant may be wrongly convicted. On the other hand, if
recklessness is enough, and the jury is told that conviction
requires proof of more, a guilty defendant may go free. We granted
review in this case to resolve a disagreement among the Circuits.
But the Court has compounded—not clarified—the
confusion.
There is no justification for the Court’s
refusal to provide an answer. The Court says that “[n]either
Elonis nor the Government has briefed or argued” the question
whether recklessness is sufficient. Ante, at 16. But in fact
both parties addressed that issue. Elonis argued that recklessness
is not enough, and the Government argued that it more than
suffices. If the Court thinks that we cannot decide the
recklessness question without additional help from the parties, we
can order further briefing and argument. In my view, however, we
are capable of deciding the recklessness issue, and we should
resolve that question now.
I
Section 875(c) provides in relevant part:
“Whoever transmits in interstate or
foreign commerce any communication containing . . . any
threat to injure the person of another, shall be fined under this
title or imprisoned not more than five years, or both.”
Thus, conviction under this provision requires
proof that: (1) the defendant transmitted something, (2) the
thing transmitted was a threat to injure the person of another, and
(3) the transmission was in interstate or foreigncommerce.
At issue in this case is the mens rea
required with respect to the second element—that the thing
transmitted was a threat to injure the person of another. This
Court has not defined the meaning of the term “threat”
in §875(c), but in construing the same term in a related
statute, the Court distinguished a “true
‘threat’ ” from facetious or hyperbolic
remarks. Watts v. United States, 394 U. S. 705,
708 (1969) (per curiam). In my view, the term
“threat” in §875(c) can fairly be defined as a
statement that is reasonably interpreted as “an expression of
an intention to inflict evil, injury, or damage on another.”
Webster’s Third New International Dictionary 2382 (1976).
Conviction under §875(c) demands proof that the
defendant’s transmission was in fact a threat, i.e.,
that it is reasonable to interpret the transmission as an
expression of an intent to harm another. In addition, it must be
shown that the defendant was at least reckless as to whether the
transmission met that requirement.
Why is recklessness enough? My analysis of the
mens rea issue follows the same track as the Court’s,
as far as it goes. I agree with the Court that we should presume
that criminal statutes require some sort of mens rea for
conviction. See ante, at 9–13. To be sure, this
presumption marks a departure from the way in which we generally
interpret statutes. We “ordinarily resist reading words or
elements into a statute that do not appear on its face.”
Bates v. United States, 522 U. S. 23, 29 (1997)
. But this step is justified by a well-established pattern in our
criminal laws. “For several centuries (at least since 1600)
the different common law crimes have been so defined as to require,
for guilt, that the defendant’s acts or omissions be
accompanied by one or more of the various types of fault
(intention, knowledge, recklessness or—more
rarely—negligence).” 1 W. LaFave, Substantive Criminal
Law §5.5, p. 381 (2003). Based on these “background
rules of the common law, in which the requirement of some mens
rea for a crime is firmly embedded,” we require
“some indication of congressional intent, express or implied,
. . . to dispense with mens rea as an element of a
crime.” Staples v. United States, 511
U. S. 600 –606 (1994).
For a similar reason, I agree with the Court
that we should presume that an offense like that created by
§875(c) requires more than negligence with respect to a
critical element like the one at issue here. See ante, at
13–14. As the Court states, “[w]hen interpreting
federal criminal statutes that are silent on the required mental
state, we read into the statute ‘only that mens rea
which is necessary to separate wrongful conduct from
“otherwise innocent conduct.” ’ ”
Ante, at 12 (quoting Carter v. United States,
530 U. S. 255, 269 (2000) ). Whether negligence is morally
culpable is an interesting philosophical question, but the answer
is at least sufficiently debatable to justify the presumption that
a serious offense against the person that lacks any clear
common-law counterpart should be presumed to require more.
Once we have passed negligence, however, no
further presumptions are defensible. In the hierarchy of mental
states that may be required as a condition for criminal liability,
the mens rea just above negligence is recklessness.
Negligence requires only that the defendant “should [have]
be[en] aware of a substantial and unjustifiable risk,” ALI,
Model Penal Code §2.02(2)(d), p. 226 (1985), while
recklessness exists “when a person disregards a risk of harm
of which he is aware,” Farmer v. Brennan, 511
U. S. 825, 837 (1994) ; Model Penal Code §2.02(2)(c). And
when Congress does not specify a mens rea in a criminal
statute, we have no justification for inferring that anything more
than recklessness is needed. It is quite un-usual for us to
interpret a statute to contain a requirement that is nowhere set
out in the text. Once we have reached recklessness, we have gone as
far as we can without stepping over the line that separates
interpretation from amendment.
There can be no real dispute that recklessness
regarding a risk of serious harm is wrongful conduct. In a wide
variety of contexts, we have described reckless conduct as morally
culpable. See, e.g., Farmer, supra, at 835–836
(deliberate indifference to an inmate’s harm);
Garrison v. Louisiana, 379 U. S. 64, 75 (1964)
(criminal libel); New York Times Co. v. Sullivan, 376
U. S. 254 –280 (1964) (civil libel). Indeed, this Court
has held that “reckless disregard for human life” may
justify the death penalty. Tison v. Arizona, 481
U. S. 137, 157 (1987) . Someone who acts recklessly with
respect to conveying a threat necessarily grasps that he is not
engaged in innocent conduct. He is not merely careless. He is aware
that others could regard his statements as a threat, but he
delivers them anyway.
Accordingly, I would hold that a defendant may
be convicted under §875(c) if he or she consciously disregards
the risk that the communication transmitted will be interpreted as
a true threat. Nothing in the Court’s non-committal opinion
prevents lower courts from adopting that standard.
II
There remains the question whether
interpreting §875(c) to require no more than recklessness with
respect to the element at issue here would violate the First
Amendment. Elonis contends that it would. I would reject that
argument.
It is settled that the Constitution does not
protect true threats. See Virginia v. Black, 538
U. S. 343 –360 (2003);
R. A. V. v. St. Paul, 505
U. S. 377, 388 (1992) ; Watts, 394 U. S., at
707–708. And there are good reasons for that rule: True
threats inflict great harm and have little if any social value. A
threat may cause serious emotional stress for the person threatened
and those who care about that person, and a threat may lead to a
violent confrontation. It is true that a communication containing a
threat may include other statements that have value and are
entitled to protection. But that does not justify constitutional
protection for the threat itself.
Elonis argues that the First Amendment protects
a threat if the person making the statement does not actually
intend to cause harm. In his view, if a threat is madefor a
“ ‘therapeutic’ ” purpose,
“to ‘deal with the pain’ . . . of a
wrenching event,” or for “cathartic” reasons, the
threat is protected. Brief for Petitioner 52–53. But whether
or not the person making a threat intends to cause harm, the damage
is the same. And the fact that making a threat may have a
therapeutic or cathartic effect for the speaker is not sufficient
to justify constitutional protection. Some people may experience a
therapeutic or cathartic benefit only if they know that their words
will cause harm or only if they actually plan to carry out the
threat, but surely the First Amendment does not protect them.
Elonis also claims his threats were
constitutionally protected works of art. Words like his, he
contends, are shielded by the First Amendment because they are
similar to words uttered by rappers and singers in public
performances and recordings. To make this point, his brief includes
a lengthy excerpt from the lyrics of a rap song in which a very
well-compensated rapper imagines killing his ex-wife and dumping
her body in a lake. If this celebrity can utter such words, Elonis
pleads, amateurs like him should be able to post similar things on
social media. But context matters. “Taken in context,”
lyrics in songs that are performed for an audience or sold in
recorded form are unlikely to be interpreted as a real threat to a
real person. Watts, supra, at 708. Statements on social
media that are pointedly directed at their victims, by contrast,
are much more likely to be taken seriously. To hold otherwise would
grant a license to anyone who is clever enough to dress up a real
threat in the guise of rap lyrics, a parody, or something
similar.
The facts of this case illustrate the point.
Imagine the effect on Elonis’s estranged wife when she read
this: “ ‘If I only knew then what I know now
. . . I would have smothered your ass with a pillow,
dumped your body in the back seat, dropped you off in Toad Creek
and made it look like a rape and murder.’ ” 730
F. 3d 321, 324 (CA3 2013). Or this: “There’s one
way to love you but a thousand ways to kill you. I’m not
going to rest until your body is a mess, soaked in blood and dying
from all the little cuts.” Ibid. Or this: “Fold
up your [protection from abuse order] and put it in your pocket[.]
Is it thick enough to stop a bullet?” Id., at 325.
There was evidence that Elonis made sure his
wife saw his posts. And she testified that they made her feel
“ ‘extremely afraid’ ” and
“ ‘like [she] was being
stalked.’ ” Ibid. Considering the context,
who could blame her? Threats of violence and intimidation are among
the most favored weapons of domestic abusers, and the rise of
social media has only made those tactics more commonplace. See
Brief for The National Network to End Domestic Violence et al.
as Amici Curiae 4–16. A fig leaf of artistic
expression cannot convert such hurtful, valueless threats into
protected speech.
It can be argued that §875(c), if not
limited to threats made with the intent to harm, will chill
statements that do not qualify as true threats, e.g.,
statements that may be literally threatening but are plainly not
meant to be taken seriously. We have sometimes cautioned that it is
necessary to “exten[d] a measure of strategic
protection” to otherwise unprotected false statements of fact
in order to ensure enough “ ‘breathing
space’ ” for protected speech. Gertz v.
Robert Welch, Inc., 418 U. S. 323, 342 (1974) (quoting
NAACP v. Button, 371 U. S. 415, 433 (1963) ). A
similar argument might be made with respect to threats. But we have
also held that the law provides adequate breathing space when it
requires proof that false statements were made with reckless
disregard of their falsity. See New York Times, 376
U. S., at 279–280 (civil liability); Garrison,
379 U. S., at 74–75 (criminal liability). Requiring
proof of recklessness is similarly sufficient here.
III
Finally, because the jury instructions in this
case did not require proof of recklessness, I would vacate the
judgment below and remand for the Court of Appeals to decide in the
first instance whether Elonis’s conviction could be upheld
under a recklessness standard.
We do not lightly overturn criminal convictions,
even where it appears that the district court might have erred. To
benefit from a favorable ruling on appeal, a defendant must have
actually asked for the legal rule the appellate court adopts. Rule
30(d) of the Federal Rules of Criminal Procedure requires a
defendant to “inform the court of the specific objection and
the grounds for the objection.” An objection cannot be vague
or open-ended. It must specifically identify the alleged
error. And failure to lodge a sufficient objection “precludes
appellate review,” except for plain error. Rule 30(d); see
also 2A C. Wright & P. Henning, Federal Practice and Procedure
§484, pp. 433–435 (4th ed. 2009).
At trial, Elonis objected to the District
Court’s instruction, but he did not argue for recklessness.
Instead, he proposed instructions that would have required proof
that he acted purposefully or with knowledge that his statements
would be received as threats. See App. 19–21. He advanced the
same position on appeal and in this Court. See Brief for Petitioner
29 (“Section 875(c) requires proof that the defendant
intended the charged statement to be a
‘threat’ ” (emphasis in original));
Corrected Brief of Appellant in No. 12–3798 (CA3), p. 14
(“[A] ‘true threat’ has been uttered only if the
speaker acted with subjective intent to threaten”
(same)). And at oral argument before this Court, he expressly
disclaimed any agreement with a recklessness standard—which
the Third Circuit remains free to adopt. Tr. of Oral Arg.
8:22–23 (“[W]e would say that recklessness is not
justif[ied]”). I would therefore remand for the Third Circuit
to determine if Elonis’s failure (indeed, refusal) to
argue for recklessness prevents reversal of his conviction.
The Third Circuit should also have the
opportunity to consider whether the conviction can be upheld on
harmless-error grounds. “We have often applied harmless-error
analysis to cases involving improper instructions.”
Neder v. United States, 527 U. S. 1, 9 (1999) ;
see also, e.g., Pope v. Illinois, 481
U. S. 497 –504 (1987) (remanding for harmless-error
analysis after holding that jury instruction misstated obscenity
standard). And the Third Circuit has previously upheld convictions
where erroneous jury instructions proved harmless. See, e.g.,
United States v. Saybolt, 577 F. 3d 195,
206–207 (2009). It should be given the chance to address that
possibility here.