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.