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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.