Elonis v. United States: US Supreme Court Makes a Statement on UN-Threat and Free Speech


US Supreme Court Makes a Statement

on UN-Threats and Free Speech

Elonis v. United States, No. 13-983, 575 U.S. ___ (June 1, 2015)

Question 

Does a conviction of threatening another person under 18 U. S. C. §875(c) require proof of the defendant’s subjective intent to threaten?

 The US Supreme Court appears to have taken one small step toward restoring the real America’s (US)Constitution and “incorporated” Bill of Rights as ratified and directly applied to the people through the Fourteenth Amendment when, on June 01, 2015, in an 8-1 ruling, which this real mommy distinguishes sharply from a “recommendation,” Chief Justice John Roberts shot down procedurally absurd facial interpretations that landed appellant-plaintiff, Anthony Elonis, in jail on criminal charges. ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part. THOMAS, J., filed a dissenting opinion. The reversal and remand to the Third Circuit challenges Judges Aldisert, Scirica, and Hardiman’s previous ruling which Anthony Elonis appealed via Writ of Certiorari 

The US High Court aimed to resolve a Circuit Court split on whether or not  a conviction for threatening another person in interstate communications, here, on Facebook, require proof of the defendant’s subjective intent to threaten and, if not, does the First Amendment prevent a conviction based only on a showing that a reasonable person would regard the statement as threatening?

Hopefully, this decision rife with First Amendment US Constitutional  free speech import, though the perhaps strategically manufactured or maneuvered political or ideological case went out of its way to avoid its own ruling on a case that ironically stemmed from an interstate Facebook post sends the message to the most prudent inferior and state court district jurists and panelists, over zealous committees to include CPS Cluster “family ‘civil'” and juvenile courts and collaborative, unified “joint public-private” NGO’s, foreign jurisdictions, corporations, for profit “non-for-profit” lobbyists, judicial campaign donors, and affiliated agencies and state bar and district and county clerks and court recorders/reporters’ international associations, and let us not forget the American Inns of Family Court, that form–procedure–must never be elevated over substance.

 The Facts 

In May 2010, Anthony Elonis’s wife of seven years left him, taking their two kids with her.7 The following October, Elonis was fired from his job at Dorney Park & Wildwater Kingdom, an amusement park in Allentown, Pennsylvania, because of a photograph he had posted on Facebook taken during his office’s Halloween party.8 The photo showed Elonis in a costume, holding a knife to a coworker’s throat with the caption, “I wish.”

His boss saw the post and fired him that same day.10 Two days after he was fired, Elonis took to Facebook. He first posted about his former employer, Dorney Park,11 imagining the fear his former coworkers must feel not knowing whether he still had keys to the gates.

He also posted about his estranged wife: “[i]f 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.” He posted more about his wife in comments on her sister’s status updates.

For example, when his wife’s sister posted about going Halloween costume shopping with his children, Elonis commented, “Tell [my son] he should dress up as matricide for Halloween. I don’t know what his costume would entail though. Maybe [my wife’s] head on a stick?”15

He also posted in October 2010:16

“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. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave.

I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you.

So hurry up and die, bitch, so I can forgive you.17

As a result of these statements, a state court issued Elonis’s wife a restraining order against him on November 4, 2010.18

In response, Elonis posted again on November 7, this time an adaptation of the Whitest Kids U’ Know sketch “It’s Illegal to Say. . .”:19

Did you know that it’s illegal for me to say I want to kill my wife?

It’s illegal. It’s indirect criminal contempt.

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.

I’m not actually saying it. I’m just letting you know that it’s illegal for me to say that.

It’s kind of like a public service. I’m letting you know so that you don’t accidently go out and say something like that.

Um, what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife.

That’s illegal. Very, very illegal.

But not illegal to say with a mortar launcher.”

The Ruling 

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.   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.

Watch a short video by clicking on the following link,

http://www.cnn.com/2014/12/01/politics/supreme-court-elonis-vs-u-s-free-speech/

Link to

 
 

Regarding perhaps strategic plants and cases,  Divorce in Connecticut blogger, Catharine Sloper wrote an interesting piece regarding the case of Edward/”Ted” Taupier who appears to be a lighting rod for controversy.  I highly recommend the read at http://divorceinconnecticut.blogspot.com/search/label/TED%20TAUPIER.

Re-blogged from divorce in connecticut

by:  Catharine Sloper

Monday, June 8, 2015

U.S. SUPREME COURT DECISION MAY HAVE SIGNIFICANT IMPACT ON TED TAUPIER CASE!

 According to Michelle Tuccitto Sullo of “The CT Law Tribune”:
 
“A recent U.S. Supreme Court decision in which the justices threw out a man’s conviction for making threatening comments about his wife on Facebook is already having an impact in Connecticut.
 
Closing arguments in the trial of a man accused of threatening a family court judge via email had been scheduled for June 2. However, in light of the June 1 ruling in Elonis v. United States, Middletown Superior Court Judge David Gold granted a continuance in the Connecticut case to June 23.
 
Torrington attorney Rachel Baird, who represents Edward Taupier, of Cromwell, said the continuance will give her an opportunity to file a brief on how the national ruling impacts her client’s case.
 
Taupier, 50, faces charges of threatening, disorderly conduct and breach of peace in connection with comments he allegedly made in an August 2014 email about Judge Elizabeth Bozzuto, the state’s chief administrative judge for family matters.
 
 
“It is my position that the Elonis case will have a tremendous impact on Taupier’s case,” Baird said. The high court ruling states that “there must be a showing that a person intentionally made a statement to threaten, not that they made a statement and a person felt threatened.”
 
“Otherwise, people will have to be very careful about what they say, because someone might take it the wrong way,” Baird said.
 
Baird said her brief will cover the issue of what the prosecution must prove about her clients mental state in order to convict him of threatening. She said the prosecution must show that Taupier intended to threaten the judge and wasn’t just being reckless with his words…”

Read more:

http://www.ctlawtribune.com/id=1202728420037/Man-Accused-of-Threatening-Conn-Judge-Cites-New-Supreme-Court-Ruling-in-Defense#ixzz3cRitFw1v

 

Elonis v. United States, No. 13-983, 575 U.S. ___ (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.… 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. … The lyrics Elonis posted [on Facebook] … 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.” [App.] 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.…

B

A grand jury indicted Elonis for making threats to injure patrons and employees [at his former place of employment], his estranged wife, police officers, a kindergarten class, and an FBI agent, all in violation of 18 U.S. C. §875(c). … 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.” … 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. … In Elonis’s view, he had posted “nothing . . . that hasn’t been said already.” … 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. …

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….

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.

….

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. … 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).

….

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. … In other instances, however, requiring only that the defendant act knowingly “would fail to protect the innocent actor.”   …

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 [v. United States], 511 U.S. [600,] 606–607 [(1994)] (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.

….

*     *     *

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. … In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. … 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). … 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. …

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,” … for us to decline to be the first appellate tribunal to do so.

….

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.

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.

….

I

….

… 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 ofmens 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 withmens rea as an element of a crime.” Staples v. United States, 511 U.S. 600, 605–606 (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. …

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 unusual 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, 279–280 (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 noncommittal 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, 359–360 (2003); R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992); Watts [v. United States], 394 U.S. [705,] 707–708 [(1969) (per curiam)]. 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.

….

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.

….

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

….

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.

….

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.

….

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. XCitement 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, 270– 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. …

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, 382– 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. [Citations omitted.] And that practice continued even after the States amended their constitutions to include speech protections similar to those in the First Amendment. [Citations omitted.] State practice thus provides at least some evidence of the original meaning of the phrase “freedom of speech” in the First Amendment. [Citation omitted.]

….

… 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 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 [v. United States, 253 F. 643 (7th Cir. 1918)]’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.

….

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, 309–310 (1940); see alsoChaplinsky v. New Hampshire, 315 U.S. 568, 572– 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 without proof that he knew the materials were legally obscene. Hamling [v. United States], 418 U.S. [87,] 120–124 [(1974)]. 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, 770, 773–775 (1986). I see no reason why we should give threats pride of place among unprotected speech.

….

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. …

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, 382– 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. [Citations omitted.] And that practice continued even after the States amended their constitutions to include speech protections similar to those in the First Amendment. [Citations omitted.] State practice thus provides at least some evidence of the original meaning of the phrase “freedom of speech” in the First Amendm

I respectfully dissent.

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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .

SUPREME COURT OF THE UNITED STATES

Syllabus

elonis v. united states

certiorari to the united states court of appeals for the third circuit

No. 13–983. Argued December 1, 2014—Decided June 1, 2015

After his wife left him, petitioner Anthony Douglas Elonis, under the pseudonym “Tone Dougie,” used the social networking Web site Facebook to post self-styled rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. These posts were often interspersed with disclaimers that the lyrics were “fictitious” and not intended to depict real persons, and with statements that Elonis was exercising his First Amendment rights. Many who knew him saw his posts as threatening, however, including his boss, who fired him for threatening co-workers, and his wife, who sought and was granted a state court protection-from-abuse order against him.

When Elonis’s former employer informed the Federal Bureau of Investigation of the posts, the agency began monitoring Elonis’s Face-book activity and eventually arrested him. He was charged with five counts of violating 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” At trial, Elonis requested a jury instruction that the Government was required to prove that he intended to communicate a “true threat.” Instead, the District Court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. Elonis was convicted on four of the five counts and renewed his jury instruction challenge on appeal. The Third Circuit affirmed, holding that Section 875(c) requires only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat.

Held: The Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c). Pp. 7–17.

(a) Section 875(c) does not indicate whether the defendant must intend that the communication contain a threat, and the parties can show no indication of a particular mental state requirement in the statute’s text. Elonis claims that the word “threat,” by definition, conveys the intent to inflict harm. But common definitions of “threat” speak to what the statement conveys—not to the author’s mental state. The Government argues that the express “intent to extort” requirements in neighboring Sections 875(b) and (d) should preclude courts from implying an unexpressed “intent to threaten” requirement in Section 875(c). The most that can be concluded from such a comparison, however, is that Congress did not mean to confine Section 875(c) to crimes of extortion, not that it meant to exclude a mental state requirement. Pp. 7–9.

(b) The Court does not regard “mere omission from a criminal enactment of any mention of criminal intent” as dispensing with such a requirement. Morissette v. United States, 342 U. S. 246 . This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. Id., at 252. 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 . Thus, criminal statutes are generally interpreted “to include broadly applicable scienter requirements, even where the statute . . . does not contain them.” United States v. X-Citement Video, Inc., 513 U. S. 64 . This does not mean that a defendant must know that his conduct is illegal, but a defendant must have knowledge of “the facts that make his conduct fit the definition of the offense.” Staples v. United States, 511 U. S. 600 , n. 3. Federal criminal statutes that are silent on the required mental state should be read to include “only that mens reawhich is necessary to separate” wrongful from innocent conduct. Carter v. United States, 530 U. S. 255 . In some cases, a general requirement that a defendant act knowingly is sufficient, but where such a requirement “would fail to protect the innocent actor,” the statute “would need to be read to require . . . specific intent.” Ibid. Pp. 9–13.

(c) 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. In the context of Section 875(c), that requires proof that a communication was transmitted and that it contained a threat. And because “the crucial element separating legal innocence from wrongful conduct,” id., at 73, is the threatening nature of the communication, the mental state requirement must apply to the fact that the communication contains a threat. Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of “awareness of some wrongdoing,” Staples, 511 U. S., at 606–607. This Court “ha[s] long been reluctant to infer that a negligence standard was intended in criminal statutes.” Rogers v. United States, 422 U. S. 35 (Marshall, J., concurring). And the Government fails to show that the instructions in this case required more than a mental state of negligence. Hamling v. United States, 418 U. S. 87 , distinguished. Section 875(c)’s mental state requirement 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. The Court declines to address whether a mental state of recklessness would also suffice. Given the disposition here, it is unnecessary to consider any First Amendment issues. Pp. 13–17.

730 F. 3d. 321, reversed and remanded.

Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and dissenting in part. Thomas, J., filed a dissenting opinion.

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