Elonis v. United States, 575 U.S. 723 (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.... 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.” 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.” Elonis posted an explanation to another Facebook user that “I’m doing this for me. My writing is therapeutic.”....

Elonis’s posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife.... Elonis posted an adaptation of a satirical sketch that he and his wife had watched together. 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....

After viewing some of Elonis’s posts, his wife felt “extremely afraid for [her] life.”. A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order).. Elonis referred to the order in another post on his “Tone Dougie” page[.] ...

At the bottom of this post was a link to the Wikipedia article on “Freedom of speech.” 

That same month, interspersed with posts about a movie Elonis liked and observations on a comedian’s social commentary, Elonis posted an entry [about a school shooting, which led to] FBI Agent Denise Stevens [creating] a Facebook account to monitor his online activity.. After the post about a school shooting, Agent Stevens and her partner visited Elonis at his house. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another [threatening] entry on his Facebook page, called “Little Agent Lady,” which led to Count Five[.]...

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). 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.” 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.” 

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.” A jury convicted Elonis on four of the five counts against him, acquitting only on the charge of threatening park patrons and employees. 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....

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.” ... This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal.” ... 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.... We therefore generally “interpret [ ] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” ...

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” typically 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,” ... even if he does not know that those facts give rise to a crime....

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.’ ” ... In some cases, a general requirement that a defendant act knowingly is itself an adequate safeguard....

 C

[5] Section 875(c), as noted, requires proof that a communication was transmitted and that it contained a threat. * * * 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. 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.” ... 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 ... and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes,” ... Under these principles, “what [Elonis] thinks” does matter. 

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.... 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.. But the fact that the Government would require a defendant to actually 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.... 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 reasonable 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. * * * 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.” * * *  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.”  * * * 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 2019 – 2020, 2022 – 2023 (opinion of THOMAS, J.), nothing in Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606 (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. * * *  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.” * * * The Court correctly rejected this “ignorance of the law” defense; no such contention is at issue here....

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.” 

 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....

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.

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.

... 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 2008 – 2009. 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.” * * * 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.” * * *

Under this “conventional mens rea element,” “the defendant [must] know the facts that make his conduct illegal,” but he need not know that those facts make his conduct illegal. 

...  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), 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. ...  I respectfully dissent.