MARTIN

v.

STATE.

Appeal from Circuit Court, Houston County; D. C. Halstead.

Cephus Martin was convicted of public drunkenness, and he appeals.

Reversed and rendered on rehearing.

W. Perry Calhoun, of Dothan, for appellant.

The original arrest being unlawful and without a warrant, the subsequent happenings by appellant should not be used against him to make out a Case of public drunkenness. If appellant’s acts were the result of compulsion and duress, this is a good defense. Browning v. State, ante, p. 137, 13 So.2d 54; Gassenheìmer v. State, 52 Ala. 313.

Wm. N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst. Atty. Gen., for the State.

It is no defense to the perpetration of a crime that facilities for its commission were purposely placed in the way. Nelson v. City Of Roanoke, Z4 Ala.App. 277, 135 So. 312. Compulsion which will excuse crime must be Present, imminent and impending and of Such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Such compulsion must have arisen without the fault or negligence of the person asserting it as a defense. 22 Criminal Law, page 99, 44; 16 CJ. 91; Moore v. State, 23 Ala. App. 432, 127 So. 796; Thomas v. State, 134 Ala. 126, 33 So.« 130; Browning v. State, ante, p. 137, 13 So.2d 54. Burden of proving defense of duress is upon accused. 22 C.]. S., Criminal Law, page 888, 575.

SIMPSON, Judge.

Appellant was convicted of being drunk on a public highway, and appeals. Officers of the law arrested him at his home and took him onto the highway, where he allegedly committed the proscribed acts, viz., manifested a drunken condition by using loud and profane language.

The pertinent provisions of our statute are: “Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, * * * and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined”, etc. Code 1940, Title 14, Section 120.

Under the plain terms of this statute, a voluntary appearance is presupposed. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer. Thomas v. State, 33 Ga. 134, 125 S.E. 778; Reddick v. State, 35 Ga. 256, 132 S.E. 645; Gunn v. State, 37 Ga. 333, 140 S.E. 524; 28 C.]. S., Drunkards, 14, p. 560.

Conviction of appellant was contrary to this announced principle and, in our view, erroneous. It appears that no legal conviction can be sustained under the evidence, so, consonant with the prevai1ing rule, the judgment of the trial court is reversed and one here rendered discharging appellant. Code 1940, Title 7, Section 260; Robison v. State, 30 Ala.App. 12, 200 So. 626; Atkins v. State, 27 Ala.App. 212, 169 So. 330.

Of consequence, our original opinion of affordance was likewise laid in error. It is therefore withdrawn.

Reversed and rendered.

 REGINA v. CUNNINGHAM.

[Reported by G. D. BLACK, Esq., Barrister-at-Law.]

Criminal Law - Mens Rea - "Maliciously" - Causing coal gas to be taken so as to endanger life - Whether “wickedness” equivalent to “malice” in statutory crime - Whether “maliciously” postulates foresight of consequence - Offences against the Person Act, 1861 (24 & 25 Viet. c. 100), s. 23.

The appellant stole a gas meter and its contents from the cellar of a house and in so doing fractured a gas pipe. Coal gas escaped, percolated through the cellar wall to the adjoining house, and entered a bedroom with the result that W., who was asleep, inhaled a considerable quantity of the gas. The appellant was charged on an indictment preferred under the Offences against the Person Act, 1861, s. 23,^[1] with unlawfully and maliciously causing to take a noxious thing, namely, coal gas, so as thereby to endanger her life. The judge directed the jury that “maliciously" meant “wickedly”-doing “something which he has no business to do and perfectly well knows it.” On an appeal against conviction:-

Held, allowing the appeal, that the word maliciously” in a statutory crime postulated foresight of consequence, and that an offence to be committed under section 23 it was necessary for the accused person either to intend to do the particular type of harm in fact done or, foreseeing that such harm might be done, for him recklessly to take the risk of it.

Reg. v. Pembliton (1874) L.R. 2 C.C.R. 119 applied.

APPEAL against conviction.

The appellant, Roy Cunningham, was charged at Leeds Assizes on two indictments. To the first indictment, which contained two counts of larceny of a gas meter and its contents contrary to sections 8 and 2 of the Larceny Act, 1916, he pleaded Guilty, and there was no appeal in that respect. The second indictment, framed under section 23 of the Offences against the Person Act, 1861, charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger her life, and to that he pleaded Not Guilty. Oliver J. directed the jury that for the purpose of the section "maliciously" meant wickedly doing "something which he has no business to do and perfectly well knows it. 'Wicked' is as good a definition as any other which you would get.” The appellant was convicted, and appealed on the ground of misdirection of the jury.

The facts are fully set out in the judgment of Byrne J.

S. E. Brodie for the appellant. The prosecution must prove on a charge brought under section 23 of the Offences against the Person Act, 1861, that the accused acted maliciously and unlawfully. Malice imports mens rea. The nature of the mens rea required is that the accused must either intend to do the harm in fact done or he must foresee that the actual harm done might occur as a result of his actions but nevertheless continues recklessly, not caring whether it be done or not. There is no authority decided on the point under section 28, but Reg. v. Pembliton,^[2] a case under section 51 of the Malicious Damage Act, 1861, and which concerned damage to property, supports the contention: See per Lord Coleridge C.J. and Blackburn J.^[3]Pembliton's case^[4] was considered in Reg. v. Latimer,^[5] a decision under Section 20 of the Offences against the Person Act, 1861, and that case is authority for the proposition that the definition of “malice " contended for applies equally to offences against the person as it does to offences against property. Oliver J.’s direction to the jury that “malice” meant “wickedness is insufficient. He was also wrong in refusing to withdraw the case from the jury at the end of the prosecution evidence.

J. S. Snowden, for the Crown, was not called upon to argue whether the case should have been withdrawn from the jury. He conceded that it would be to difficult to seek to uphold the direction. [Reference was also made to Reg. v. Faullmer^[6] and Reg. v. Martin.^[7]

Cur. adv. vult.

May 27. BYRNE J. read the following judgment. The appellant was convicted at Leeds Assizes upon an indictment framed under section 23 of the Offences against the Person Act, 1861, which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade.

The facts were that the appellant was engaged to be married and his prospective mother-­in-law was the tenant of a house, No. 7A, Bakes Street, Bradford, which was unoccupied, but which was to be occupied by the appellant after his marriage. Mrs. Wade and her husband, an elderly couple, lived in the house next door. At one time the two houses had been one, but when the building was converted into two houses a wall had been erected to divide the cellars of the two houses, and that wall was composed of rubble loosely cemented.

On the evening of January 17, 1957, the appellant went the cellar of No. 7A, Bakes Street, wrenched the gas meter from the gas pipes and stole it, together with its contents, and in a second indictment he was charged with the larceny of the gas meter and its contents. To that indictment he pleaded guilty and was sentenced to six months imprisonment. In respect of that matter he does not appeal.

The facts were not really in dispute, and in a statement to a police officer the appellant said: “All right, I will tell you. I was short of money, I had been off work for three days, I got eight shillings from the gas meter. I tore it the wall and threw it away." Although there was a stop tap within two feet of the meter the appellant did not turn off the gas, with the result that a very considerable volume of gas escaped, some of which seeped through the wall of the cellar and partially asphyxiated Mrs. Wade, who was asleep in her bedroom next door, with the result that her life was endangered.

At the close of the case for the prosecution, Mr. Brodie, who appeared for the appellant at the trial and who has appeared for him again in this court submitted that there was no case to go to the jury, but the judge, quite rightly in our opinion, rejected this submission. The appellant did not give evidence.

The act of the appellant was clearly unlawful and therefore the real question for the jury was whether it was also malicious within the meaning of section 23 of the Offences against the Person Act, 1861.

Before this court Mr. Brodie has taken three points, all dependent upon the construction of that section. Section 23 provides:

“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony . . .”

Mr. Brodie argued, first, that mens rea of some kind is necessary. Secondly, that the nature of the mens rea required is that the appellant must intend to do the particular kind of harm that was done, or, alternatively, that he must foresee that that harm may occur yet nevertheless continue recklessly to do the act. Thirdly, that the judge misdirected the jury as to the meaning of the word "maliciously.” He cited the following cases: Reg. v. Pembliton^[1*], Reg. v. Latimer^[2*] and Reg v. Faulkner^[3*]. In reply, Mr. Snowden, on behalf of the Crown, cited Reg. v. Martin.^[4*]

We have considered those cases, and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor C. S. Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p. 186 of the 16th edition edited by Mr. J. W. Cecil Turner and published in 1952:

“In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured."

The same principle is repeated by Mr. Turner in his 10th edition of Russell on Crime at p. 1592.

We think that this is an accurate statement of the law. It derives some support from the judgments of Lord Coleridge C.J. and Blackburn J. in Pembliton’s case.^[5*] In our opinion the word maliciously in a statutory crime postulates foresight of consequence.

In his summing-up Oliver J. directed the jury as follows:

“You will observe that there is nothing there about 'with intention that that person should take it.' He has not got to intend that it should be taken; it is sufficient that by his unlawful and malicious act he causes it to be taken. What you have to decide here, then, is whether, when he loosed that frightful cloud of coal gas into the house which he shared with this old lady, he caused her to take it by his unlawful and malicious action. 'Unlawful' does not need any definition. It is something forbidden by law. What about 'malicious'? 'Malicious' for this purpose means wicked -- something which he has no business to do and perfectly well knows it. 'Wicked' is as good a definition as any other which you would get.”

“The facts which face you (and they are uncontradicted and undisputed; the prisoner has not gone into the box to seek to give any particular explanation) are these. Living in the house, which was now two houses but which had once been one and had been rather roughly divided, the prisoner quite deliberately, intending to steal the money that was in the meter . . . broke the gas meter away from the supply pipes and thus released the mains supply of gas at large into that house. When he did that he knew that this old lady and her husband were living next door to him. The gas meter was in a cellar. The wall which divided his cellar from the cellar next door was a kind of honeycomb wall through which gas could very well go, so that when he loosed that cloud of gas into that place he must have known perfectly well that gas would percolate all over the house. If it were part of this offense - which it is not -that he intended to poison the old lady, I should have left it to you to decide, and I should have told you that there was evidence on which you could find that he “intended that, since he did an action which he must have known would result in that. As I have already told you, it is not necessary to prove that he intended to do it; it is quite enough that what he did was done unlawfully and maliciously."

With the utmost respect to the learned judge, we think it is incorrect to say that the word "malicious" in a statutory offence merely means wicked. We think the judge was, in effect, telling the jury that if they were satisfied that the appellant acted wickedly - and he had clearly acted wickedly in stealing the gas meter and its contents - they ought to find that he had acted maliciously in causing the gas to be taken by Mrs. Wade so as thereby to endanger her life.

In our view it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. We are unable to say that a reasonable jury, properly directed as to the meaning of the word maliciously in the context of section 23, would without doubt have convicted.

In these circumstances this court has no alternative but to allow the appeal and quash the conviction.

Appeal allowed.

Solicitors: Registrar, Court of Criminal Appeal; Director of Public Prosecutions.

[1] Offences against the Person Act, 1861, s. 23:

"Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony..."

[2] (1874) L.R. 2 C.C.R. 119. 

[3] Ibid. 122.

[4] L.R. 2 C.C.R. 119.

[5] (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135. 

[6] (1877) 13 Cox C.C. 550.

[7] (1881) 8 Q.B.D. 54; 14 Cox C.C. 633. 

[1*] (1874) L.R. 2 C.C.R. 119. 

[2*] (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135. 

[3*] (1877) 13 Cox C.C. 550.

[4*] (1881) 8 Q.B.D. 54; 14 Cox C.C. 633. 

[5*] L.R. 2 C.C.R. 119, 122.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

[602] Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Souter, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment, in which O'Connor, J., joined, post, p. 620. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 624.

Jennifer L. De Angelis argued the cause for petitioner. With her on the brief was Clark O. Brewster.

[602] James A. Feldman argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Bryson, and John F. De Pue.

Justice Thomas, delivered the opinion of the Court.

The National Firearms Act makes it unlawful for any person to possess a machinegun that is not properly registered with the Federal Government. Petitioner contends that, to convict him under the Act, the Government should have been required to prove beyond a reasonable doubt that he knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machinegun. We agree and accordingly reverse the judgment of the Court of Appeals.

I

The National Firearms Act (Act), 26 U. S. C. §§ 5801-5872, imposes strict registration requirements on statutorily defined "firearms." The Act includes within the term "firearm" a machinegun, § 5845(a)(6), and further defines a machinegun as "any weapon which shoots, . . . or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger," § 5845(b). Thus, any fully automatic weapon is a "firearm" within the meaning of the Act.^[1] Under the Act, all firearms must be registered in the National Firearms Registration and Transfer Record maintained by the Secretary of the Treasury. § 5841. Section 5861(d) makes it a crime, punishable [603] by up to 10 years in prison, see § 5871, for any person to possess a firearm that is not properly registered.

Upon executing a search warrant at petitioner's home, local police and agents of the Bureau of Alcohol, Tobacco and Firearms (BATF) recovered, among other things, an AR-15 rifle. The AR-15 is the civilian version of the military's M-16 rifle, and is, unless modified, a semiautomatic weapon. The M-16, in contrast, is a selective fire rifle that allows the operator, by rotating a selector switch, to choose semiautomatic or automatic fire. Many M-16 parts are interchangeable with those in the AR-15 and can be used to convert the AR-15 into an automatic weapon. No doubt to inhibit such conversions, the AR-15 is manufactured with a metal stop on its receiver that will prevent an M-16 selector switch, if installed, from rotating to the fully automatic position. The metal stop on petitioner's rifle, however, had been filed away, and the rifle had been assembled with an M-16 selector switch and several other M-16 internal parts, including a hammer, disconnector, and trigger. Suspecting that the AR-15 had been modified to be capable of fully automatic fire, BATF agents seized the weapon. Petitioner subsequently was indicted for unlawful possession of an unregistered machinegun in violation of § 5861(d).

At trial, BATF agents testified that when the AR-15 was tested, it fired more than one shot with a single pull of the trigger. It was undisputed that the weapon was not registered as required by § 5861(d). Petitioner testified that the rifle had never fired automatically when it was in his possession. He insisted that the AR-15 had operated only semiautomatically, and even then imperfectly, often requiring manual ejection of the spent casing and chambering of the next round. According to petitioner, his alleged ignorance of any automatic firing capability should have shielded him from criminal liability for his failure to register the weapon. He requested the District Court to instruct the jury that, to establish a violation of § 5861(d), the Government must prove [604] beyond a reasonable doubt that the defendant "knew that the gun would fire fully automatically." 1 App. to Brief for Appellant in No. 91-5033 (CA10), p. 42.

The District Court rejected petitioner's proposed instruction and instead charged the jury as follows:

"The Government need not prove the defendant knows he's dealing with a weapon possessing every last characteristic [which subjects it]^[2] to the regulation. It would be enough to prove he knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of regulation." Tr. 465.

Petitioner was convicted and sentenced to five years' probation and a $5,000 fine.

The Court of Appeals affirmed. Relying on its decision in United States v. Mittleider, 835 F. 2d 769 (CA10 1987), cert. denied, 485 U. S. 980 (1988), the court concluded that the Government need not prove a defendant's knowledge of a weapon's physical properties to obtain a conviction under § 5861(d). 971 F. 2d 608, 612-613 (CA10 1992). We granted certiorari, 508 U. S. 939 (1993), to resolve a conflict in the Courts of Appeals concerning the mens rea required under § 5861(d).

II

A

Whether or not § 5861(d) requires proof that a defendant knew of the characteristics of his weapon that made it a "firearm" under the Act is a question of statutory construction. As we observed in Liparota v. United States, 471 U. S. 419 (1985), "[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute." Id. , at 424 (citing United States v. Hudson, 7 Cranch 32 [605] (1812)). Thus, we have long recognized that determining the mental state required for commission of a federal crime requires "construction of the statute and . . . inference of the intent of Congress." United States v. Balint, 258 U. S. 250, 253 (1922). See also Liparota, supra, at 423.

The language of the statute, the starting place in our inquiry, see Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992), provides little explicit guidance in this case. Section 5861(d) is silent concerning the mens rea required for a violation. It states simply that "[i]t shall be unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 26 U. S. C. § 5861(d). Nevertheless, silence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal. See Balint, supra, at 251 (stating that traditionally, "scienter " was a necessary element in every crime). See also n. 3, infra. On the contrary, we must construe the statute in light of the background rules of the common law, see United States v. United States Gypsum Co., 438 U. S. 422, 436-437 (1978), in which the requirement of some mens rea for a crime is firmly embedded. As we have observed, "[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Id., at 436 (internal quotation marks omitted). See also Morissette v. United States, 342 U. S. 246, 250 (1952) ("The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil").

There can be no doubt that this established concept has influenced our interpretation of criminal statutes. Indeed, we have noted that the common-law rule requiring mens rea [606] has been "followed in regard to statutory crimes even where the statutory definition did not in terms include it." Balint, supra, at 251-252. Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea generally are disfavored, Liparota, supra, at 426, and have suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime. Cf. United States Gypsum, supra, at 438; Morissette, supra, at 263.

According to the Government, however, the nature and purpose of the Act suggest that the presumption favoring mens rea does not apply to this case. The Government argues that Congress intended the Act to regulate and restrict the circulation of dangerous weapons. Consequently, in the Government's view, this case fits in a line of precedent concerning what we have termed "public welfare" or "regulatory" offenses, in which we have understood Congress to impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal. In construing such statutes, we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense.

For example, in Balint, we concluded that the Narcotic Act of 1914, which was intended in part to minimize the spread of addictive drugs by criminalizing undocumented sales of certain narcotics, required proof only that the defendant knew that he was selling drugs, not that he knew the specific items he had sold were "narcotics" within the ambit of the statute. See Balint, supra, at 254. Cf. United States v. Dotterweich, 320 U. S. 277, 281 (1943) (stating in dicta that a statute criminalizing the shipment of adulterated or misbranded drugs did not require knowledge that the items were misbranded or adulterated). As we explained in Dotterweich, Balint dealt with "a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional [607] requirement for criminal conduct—awareness of some wrongdoing." 320 U. S., at 280-281. See also Morissette, supra, at 252-256.

Such public welfare offenses have been created by Congress, and recognized by this Court, in "limited circumstances." United States Gypsum, supra, at 437. Typically, our cases recognizing such offenses involve statutes that regulate potentially harmful or injurious items. Cf. United States v. International Minerals & Chemical Corp., 402 U. S. 558, 564-565 (1971) (characterizing Balint and similar cases as involving statutes regulating "dangerous or deleterious devices or products or obnoxious waste materials"). In such situations, we have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him "in responsible relation to a public danger," Dotterweich, supra, at 281, he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to "ascertain at his peril whether [his conduct] comes within the inhibition of the statute." Balint, supra, at 254. Thus, we essentially have relied on the nature of the statute and the particular character of the items regulated to determine whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mens rea requirements. See generally Morissette, supra, at 252-260.^[3] [608]

B

The Government argues that § 5861(d) defines precisely the sort of regulatory offense described in Balint . In this view, all guns, whether or not they are statutory "firearms," are dangerous devices that put gun owners on notice that they must determine at their hazard whether their weapons come within the scope of the Act. On this understanding, the District Court's instruction in this case was correct, because a conviction can rest simply on proof that a defendant knew he possessed a "firearm" in the ordinary sense of the term.

The Government seeks support for its position from our decision in United States v. Freed, 401 U. S. 601 (1971), which involved a prosecution for possession of unregistered grenades under § 5861(d).^[4] The defendant knew that the items in his possession were grenades, and we concluded that § 5861(d) did not require the Government to prove the defendant also knew that the grenades were unregistered. Id., at 609. To be sure, in deciding that mens rea was not required with respect to that element of the offense, we suggested [609] that the Act "is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Ibid. Grenades, we explained, "are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint. " Ibid. But that reasoning provides little support for dispensing with mens rea in this case.

As the Government concedes, Freed did not address the issue presented here. In Freed, we decided only that § 5861(d) does not require proof of knowledge that a firearm is unregistered. The question presented by a defendant who possesses a weapon that is a "firearm" for purposes of the Act, but who knows only that he has a "firearm" in the general sense of the term, was not raised or considered. And our determination that a defendant need not know that his weapon is unregistered suggests no conclusion concerning whether § 5861(d) requires the defendant to know of the features that make his weapon a statutory "firearm"; different elements of the same offense can require different mental states. See Liparota, 471 U. S., at 423, n. 5; United States v. Bailey, 444 U. S. 394, 405-406 (1980). See also W. LaFave & A. Scott, Handbook on Criminal Law 194-195 (1972). Moreover, our analysis in Freed likening the Act to the public welfare statute in Balint rested entirely on the assumption that the defendant knew that he was dealing with hand grenades—that is, that he knew he possessed a particularly dangerous type of weapon (one within the statutory definition of a "firearm"), possession of which was not entirely "innocent" in and of itself. 401 U. S., at 609. The predicate for that analysis is eliminated when, as in this case, the very question to be decided is whether the defendant must know of the particular characteristics that make his weapon a statutory firearm.

Notwithstanding these distinctions, the Government urges that Freed `s logic applies because guns, no less than grenades, [610] are highly dangerous devices that should alert their owners to the probability of regulation. But the gap between Freed and this case is too wide to bridge. In glossing over the distinction between grenades and guns, the Government ignores the particular care we have taken to avoid construing a statute to dispense with mens rea where doing so would "criminalize a broad range of apparently innocent conduct." Liparota, 471 U. S., at 426. In Liparota, we considered a statute that made unlawful the unauthorized acquisition or possession of food stamps. We determined that the statute required proof that the defendant knew his possession of food stamps was unauthorized, largely because dispensing with such a mens rea requirement would have resulted in reading the statute to outlaw a number of apparently innocent acts. Ibid. Our conclusion that the statute should not be treated as defining a public welfare offense rested on the commonsense distinction that a "food stamp can hardly be compared to a hand grenade." Id., at 433.

Neither, in our view, can all guns be compared to hand grenades. Although the contrast is certainly not as stark as that presented in Liparota, the fact remains that there is a long tradition of widespread lawful gun ownership by private individuals in this country. Such a tradition did not apply to the possession of hand grenades in Freed or to the selling of dangerous drugs that we considered in Balint. See also International Minerals, 402 U. S., at 563-565; Balint, 258 U. S., at 254. In fact, in Freed we construed § 5861(d) under the assumption that "one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Freed, supra, at 609. Here, the Government essentially suggests that we should interpret the section under the altogether different assumption that "one would hardly be surprised to learn that owning a gun is not an innocent act." That proposition is simply not supported by common experience. Guns in general are not "deleterious devices or products or obnoxious waste materials," International Minerals, [611] supra, at 565, that put their owners on notice that they stand "in responsible relation to a public danger," Dotterweich, 320 U. S., at 281.

The Government protests that guns, unlike food stamps, but like grenades and narcotics, are potentially harmful devices.^[5] Under this view, it seems that Liparota `s concern for criminalizing ostensibly innocuous conduct is inapplicable whenever an item is sufficiently dangerous—that is, dangerousness alone should alert an individual to probable regulation and justify treating a statute that regulates the dangerous device as dispensing with mens rea. But that an item is "dangerous," in some general sense, does not necessarily suggest, as the Government seems to assume, that it is not also entirely innocent. Even dangerous items can, in some cases, be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation. As suggested above, despite their potential for harm, guns generally can be owned in perfect innocence. Of course, we might surely classify certain categories of guns—no doubt including the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to [612] regulation—as items the ownership of which would have the same quasi-suspect character we attributed to owning hand grenades in Freed. But precisely because guns falling outside those categories traditionally have been widely accepted as lawful possessions, their destructive potential, while perhaps even greater than that of some items we would classify along with narcotics and hand grenades, cannot be said to put gun owners sufficiently on notice of the likelihood of regulation to justify interpreting § 5861(d) as not requiring proof of knowledge of a weapon's characteristics.^[6]

[613] On a slightly different tack, the Government suggests that guns are subject to an array of regulations at the federal, state, and local levels that put gun owners on notice that they must determine the characteristics of their weapons and comply with all legal requirements.^[7] But regulation in itself is not sufficient to place gun ownership in the category of the sale of narcotics in Balint. The food stamps at issue in Liparota were subject to comprehensive regulations, yet we did not understand the statute there to dispense with a mens rea requirement. Moreover, despite the overlay of legal restrictions on gun ownership, we question whether regulations on guns are sufficiently intrusive that they impinge upon the common experience that owning a gun is usually licit and blameless conduct. Roughly 50 percent of [614] American homes contain at least one firearm of some sort,^[8] and in the vast majority of States, buying a shotgun or rifle is a simple transaction that would not alert a person to regulation any more than would buying a car.^[9]

If we were to accept as a general rule the Government's suggestion that dangerous and regulated items place their owners under an obligation to inquire at their peril into compliance with regulations, we would undoubtedly reach some untoward results. Automobiles, for example, might also be termed "dangerous" devices and are highly regulated at both the state and federal levels. Congress might see fit to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime to operate a vehicle without a properly functioning emission control system. But we probably would hesitate to conclude on the basis of silence that Congress intended a prison term to apply to a car owner whose vehicle's emissions levels, wholly unbeknownst to him, began to exceed legal limits between regular inspection dates.

Here, there can be little doubt that, as in Liparota, the Government's construction of the statute potentially would impose criminal sanctions on a class of persons whose mental state—ignorance of the characteristics of weapons in their [615] possession—makes their actions entirely innocent.^[10] The Government does not dispute the contention that virtually any semiautomatic weapon may be converted, either by internal modification or, in some cases, simply by wear and tear, into a machinegun within the meaning of the Act. Cf. United States v. Anderson, 885 F. 2d 1248, 1251, 1253— 1254 (CA5 1989) (en banc). Such a gun may give no externally visible indication that it is fully automatic. See United States v. Herbert, 698 F. 2d 981, 986 (CA9), cert. denied, 464 U. S. 821 (1983). But in the Government's view, any person who has purchased what he believes to be a semiautomatic rifle or handgun, or who simply has inherited a gun from a relative and left it untouched in an attic or basement, can be subject to imprisonment, despite absolute ignorance of the gun's firing capabilities, if the gun turns out to be an automatic.

We concur in the Fifth Circuit's conclusion on this point: "It is unthinkable to us that Congress intended to subject such law-abiding, well-intentioned citizens to a possible tenyear term of imprisonment if . . . what they genuinely and reasonably believed was a conventional semi-automatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon." Anderson, supra, at 1254. As we noted in Morissette, the "purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction." 342 U. S., at 263.^[11] We are reluctant to impute that purpose to [616] Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation in the form of a statute such as § 5861(d).

C

The potentially harsh penalty attached to violation of § 5861(d)—up to 10 years' imprisonment—confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary. See, e. g., Commonwealth v. Raymond, 97 Mass. 567 (1867) (fine of up to $200 or six months in jail, or both); Commonwealth v. Farren, 91 Mass. 489 (1864) (fine); People v. Snowburger, 113 Mich. 86, 71 N. W. 497 (1897) (fine of up to $500 or incarceration in county jail).^[12]

As commentators have pointed out, the small penalties attached to such offenses logically complemented the absence of a mens rea requirement: In a system that generally requires [617] a "vicious will" to establish a crime, 4 W. Blackstone, Commentaries *21, imposing severe punishments for offenses that require no mens rea would seem incongruous. See Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 70 (1933). Indeed, some courts justified the absence of mens rea in part on the basis that the offenses did not bear the same punishments as "infamous crimes," Tenement House Dept. v. McDevitt, 215 N. Y. 160, 168, 109 N. E. 88, 90 (1915) (Cardozo, J.), and questioned whether imprisonment was compatible with the reduced culpability required for such regulatory offenses. See, e. g., People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N. Y. 25, 32-33, 121 N. E. 474, 477 (1918) (Cardozo, J.); id., at 35, 121 N. E., at 478 (Crane, J., concurring) (arguing that imprisonment for a crime that requires no mens rea would stretch the law regarding acts mala prohibita beyond its limitations).^[13] Similarly, commentators collecting the early cases have argued that offenses punishable by imprisonment cannot be understood to be public welfare offenses, but must require mens rea . See R. Perkins, Criminal Law 793-798 (2d ed. 1969) (suggesting that the penalty should be the starting point in determining whether a statute describes a public welfare offense); Sayre, supra, at 72 ("Crimes punishable with prison sentences . . . ordinarily require proof of a guilty intent").^[14]

In rehearsing the characteristics of the public welfare offense, we, too, have included in our consideration the punishments imposed and have noted that "penalties commonly are relatively small, and conviction does no grave damage to an [618] offender's reputation." Morissette, 342 U. S., at 256.^[15] We have even recognized that it was "[u]nder such considerations" that courts have construed statutes to dispense with mens rea. Ibid.

Our characterization of the public welfare offense in Morissette hardly seems apt, however, for a crime that is a felony, as is violation of § 5861(d).^[16] After all, "felony" is, as we noted in distinguishing certain common-law crimes from public welfare offenses, "`as bad a word as you can give to man or thing.' " Id., at 260 (quoting 2 F. Pollock & F. Maitland, History of English Law 465 (2d ed. 1899)). Close adherence to the early cases described above might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense. In this view, absent a clear statement from Congress that mens rea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea. But see United States v. Balint, 258 U. S. 250 (1922).

We need not adopt such a definitive rule of construction to decide this case, however. Instead, we note only that where, as here, dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement. [619] In such a case, the usual presumption that a defendant must know the facts that make his conduct illegal should apply.

III

In short, we conclude that the background rule of the common law favoring mens rea should govern interpretation of § 5861(d) in this case. Silence does not suggest that Congress dispensed with mens rea for the element of § 5861(d) at issue here. Thus, to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act.^[17]

We emphasize that our holding is a narrow one. As in our prior cases, our reasoning depends upon a commonsense evaluation of the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items. In addition, we think that the penalty attached to § 5861(d) suggests that Congress did not intend to eliminate a mens rea requirement for violation of the section. As we noted in Morissette: "Neither this Court nor, [620] so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not." 342 U. S., at 260. We attempt no definition here, either. We note only that our holding depends critically on our view that if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect. Cf. United States v. Harris, 959 F. 2d 246, 261 (CADC), cert. denied, 506 U. S. 932 (1992).

For the foregoing reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered. Justice Ginsburg, with whom Justice O'Connor joins, concurring in the judgment.

The statute petitioner Harold E. Staples is charged with violating, 26 U. S. C. § 5861(d), makes it a crime for any person to "receive or possess a firearm which is not registered to him." Although the word "knowingly" does not appear in the statute's text, courts generally assume that Congress, absent a contrary indication, means to retain a mens rea requirement. Ante, at 606; see Liparota v. United States, 471 U. S. 419, 426 (1985); United States v. United States Gypsum Co., 438 U. S. 422, 437-438 (1978).^[1] Thus, our holding in United States v. Freed, 401 U. S. 601 (1971), that § 5861(d) does not require proof of knowledge that the firearm is unregistered, rested on the premise that the defendant indeed [621] knew the items he possessed were hand grenades. Id. , at 607; id. , at 612 (Brennan, J., concurring in judgment) ("The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades.").

Conviction under § 5861(d), the Government accordingly concedes, requires proof that Staples "knowingly" possessed the machinegun. Brief for United States 23. The question before us is not whether knowledge of possession is required, but what level of knowledge suffices: (1) knowledge simply of possession of the object; (2) knowledge, in addition, that the object is a dangerous weapon; (3) knowledge, beyond dangerousness, of the characteristics that render the object subject to regulation, for example, awareness that the weapon is a machinegun.^[2]

Recognizing that the first reading effectively dispenses with mens rea, the Government adopts the second, contending that it avoids criminalizing "apparently innocent conduct," Liparota, supra, at 426, because under the second reading, "a defendant who possessed what he thought was a toy or a violin case, but which in fact was a machinegun, could not be convicted." Brief for United States 23. The Government, however, does not take adequate account of the "widespread lawful gun ownership" Congress and the States have allowed to persist in this country. See United States v. Harris, 959 F. 2d 246, 261 (CADC) (per curiam), cert. denied, 506 U. S. 932 (1992). Given the notable lack of comprehensive regulation, "mere unregistered possession of certain types of [regulated weapons]—often [difficult to distinguish] [622] from other, [nonregulated] types," has been held inadequate to establish the requisite knowledge. See 959 F. 2d, at 261.

The Nation's legislators chose to place under a registration requirement only a very limited class of firearms, those they considered especially dangerous. The generally "dangerous" character of all guns, the Court therefore observes, ante, at 611-612, did not suffice to give individuals in Staples' situation cause to inquire about the need for registration. Cf. United States v. Balint, 258 U. S. 250 (1922) (requiring reporting of sale of strictly regulated narcotics, opium and cocaine). Only the third reading, then, suits the purpose of the mens rea requirement—to shield people against punishment for apparently innocent activity.^[3]

The indictment in Staples' case charges that he "knowingly received and possessed firearms." 1 App. to Brief for Appellant in No. 91-5033 (CA10), p. 1.^[4] "Firearms" has a [623] circumscribed statutory definition. See 26 U. S. C. § 5845(a). The "firear[m]" the Government contends Staples possessed in violation of § 5861(d) is a machinegun. See § 5845(a)(6). The indictment thus effectively charged that Staples knowingly possessed a machinegun. "Knowingly possessed" logically means "possessed and knew that he possessed." The Government can reconcile the jury instruction^[5] with the indictment only on the implausible assumption that the term "firear[m]" has two different meanings when used once in the same charge—simply "gun" when referring to what petitioner knew, and "machinegun" when referring to what he possessed. See Cunningham, Levi, Green, & Kaplan, Plain Meaning and Hard Cases, 103 Yale L. J. 1561, 1576-1577 (1994); cf. Ratzlaf v. United States, 510 U. S. 135, 143 (1994) (construing statutory term to bear same meaning "each time it is called into play").

For these reasons, I conclude that conviction under § 5861(d) requires proof that the defendant knew he possessed not simply a gun, but a machinegun. The indictment in this case, but not the jury instruction, properly described this knowledge requirement. I therefore concur in the Court's judgment.

[624] Justice Stevens, with whom Justice Blackmun joins, dissenting.

To avoid a slight possibility of injustice to unsophisticated owners of machineguns and sawed-off shotguns, the Court has substituted its views of sound policy for the judgment Congress made when it enacted the National Firearms Act (or Act). Because the Court's addition to the text of 26 U. S. C. § 5861(d) is foreclosed by both the statute and our precedent, I respectfully dissent.

The Court is preoccupied with guns that "generally can be owned in perfect innocence." Ante, at 611. This case, however, involves a semiautomatic weapon that was readily convertible into a machinegun—a weapon that the jury found to be "`a dangerous device of a type as would alert one to the likelihood of regulation.' " Ante, at 604. These are not guns "of some sort" that can be found in almost "50 percent of American homes." Ante, at 613-614.^[1] They are particularly dangerous—indeed, a substantial percentage of the unregistered machineguns now in circulation are converted semiautomatic weapons.^[2]

The question presented is whether the National Firearms Act imposed on the Government the burden of proving beyond a reasonable doubt not only that the defendant knew he possessed a dangerous device sufficient to alert him to [625] regulation, but also that he knew it had all the characteristics of a "firearm" as defined in the statute. Three unambiguous guide posts direct us to the correct answer to that question: the text and structure of the Act, our cases construing both this Act and similar regulatory legislation, and the Act's history and interpretation.

I

Contrary to the assertion by the Court, the text of the statute does provide "explicit guidance in this case." Cf. ante, at 605. The relevant section of the Act makes it "unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 26 U. S. C. § 5861(d). Significantly, the section contains no knowledge requirement, nor does it describe a common-law crime.

The common law generally did not condemn acts as criminal unless the actor had "an evil purpose or mental culpability," Morissette v. United States, 342 U. S. 246, 252 (1952), and was aware of all the facts that made the conduct unlawful, United States v. Balint, 258 U. S. 250, 251-252 (1922). In interpreting statutes that codified traditional common-law offenses, courts usually followed this rule, even when the text of the statute contained no such requirement. Ibid. Because the offense involved in this case is entirely a creature of statute, however, "the background rules of the common law," cf. ante, at 605, do not require a particular construction, and critically different rules of construction apply. See Morissette v. United States, 342 U. S., at 252-260.

In Morissette, Justice Jackson outlined one such interpretive rule:

"Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already . . . well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense [626] new to general law, for whose definition the courts have no guidance except the Act." Id., at 262. Although the lack of an express knowledge requirement in § 5861(d) is not dispositive, see United States v. United States Gypsum Co., 438 U. S. 422, 438 (1978), its absence suggests that Congress did not intend to require proof that the defendant knew all of the facts that made his conduct illegal.^[3]

The provision's place in the overall statutory scheme, see Crandon v. United States, 494 U. S. 152, 158 (1990), confirms this intention. In 1934, when Congress originally enacted the statute, it limited the coverage of the 1934 Act to a relatively narrow category of weapons such as submachine-guns and sawed-off shotguns—weapons characteristically used only by professional gangsters like Al Capone, Pretty Boy Floyd, and their henchmen.^[4] At the time, the Act would have had little application to guns used by hunters or guns kept at home as protection against unwelcome intruders.^[5] [627] Congress therefore could reasonably presume that a person found in possession of an unregistered machinegun or sawed-off shotgun intended to use it for criminal purposes. The statute as a whole, and particularly the decision to criminalize mere possession, reflected a legislative judgment that the likelihood of innocent possession of such an unregistered weapon was remote, and far less significant than the interest in depriving gangsters of their use.

In addition, at the time of enactment, this Court had already construed comparable provisions of the Harrison Anti-Narcotic Act not to require proof of knowledge of all the facts that constitute the proscribed offense. United States v. Balint, 258 U. S. 250 (1922).^[6] Indeed, Attorney General Cummings expressly advised Congress that the text of the gun control legislation deliberately followed the language of the Anti-Narcotic Act to reap the benefit of cases construing it.^[7] Given the reasoning of Balint, we properly may infer that Congress did not intend the Court to read a stricter knowledge requirement into the gun control legislation than we read into the Anti-Narcotic Act. Cannon v. University of Chicago, 441 U. S. 677, 698-699 (1979).

Like the 1934 Act, the current National Firearms Act is primarily a regulatory measure. The statute establishes [628] taxation, registration, reporting, and record keeping requirements for businesses and transactions involving statutorily defined firearms, and requires that each firearm be identified by a serial number. 26 U. S. C. §§ 5801-5802, 5811-5812, 5821-5822, 5842-5843. The Secretary of the Treasury must maintain a central registry that includes the names and addresses of persons in possession of all firearms not controlled by the Government. § 5841. Congress also prohibited certain acts and omissions, including the possession of an unregistered firearm.^[8] § 5861.

As the Court acknowledges, ante, at 607, to interpret statutory offenses such as § 5861(d), we look to "the nature of the statute and the particular character of the items regulated" to determine the level of knowledge required for conviction. An examination of § 5861(d) in light of our precedent dictates that the crime of possession of an unregistered machinegun is in a category of offenses described as "public welfare" crimes.^[9] Our decisions interpreting such offenses clearly require affirmance of petitioner's conviction.

II

"Public welfare" offenses share certain characteristics: (1) they regulate "dangerous or deleterious devices or products [629] or obnoxious waste materials," see United States v. International Minerals & Chemical Corp., 402 U. S. 558, 565 (1971); (2) they "heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare," Morissette, 342 U. S., at 254; and (3) they "depend on no mental element but consist only of forbidden acts or omissions," id., at 252-253. Examples of such offenses include Congress' exertion of its power to keep dangerous narcotics,^[10] hazardous substances,^[11] and impure and adulterated foods and drugs^[12] out of the channels of commerce.^[13]

Public welfare statutes render criminal "a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety." Liparota v. United States, 471 U. S. 419, 433 (1985). Thus, under such statutes, "a defendant can be convicted even though he was unaware of the circumstances of his conduct that made it illegal." Id., at 443, n. 7 (White, J., dissenting). Referring to the strict criminal sanctions for unintended violations of the food and drug laws, Justice Frankfurter wrote:

"The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse [630] construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words. The prosecution . . . is based on a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger." United States v. Dotterweich, 320 U. S. 277, 280-281 (1943) (citing United States v. Balint, 258 U. S. 250 (1922); other citations omitted).

The National Firearms Act unquestionably is a public welfare statute. United States v. Freed, 401 U. S. 601, 609 (1971) (holding that this statute "is a regulatory measure in the interest of the public safety"). Congress fashioned a legislative scheme to regulate the commerce and possession of certain types of dangerous devices, including specific kinds of weapons, to protect the health and welfare of the citizenry. To enforce this scheme, Congress created criminal penalties for certain acts and omissions. The text of some of these offenses—including the one at issue here— contains no knowledge requirement.

The Court recognizes:

"[W]e have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him `in responsible relation to a public danger,' Dotterweich, supra, at 281, he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to `ascertain at his peril whether [his conduct] comes within the inhibition of the statute.' Balint, 258 U. S., at 254." Ante, at 607. [631] We thus have read a knowledge requirement into public welfare crimes, but not a requirement that the defendant know all the facts that make his conduct illegal. Although the Court acknowledges this standard, it nevertheless concludes that a gun is not the type of dangerous device that would alert one to the possibility of regulation.

Both the Court and Justice Ginsburg erroneously rely upon the "tradition[al]" innocence of gun ownership to find that Congress must have intended the Government to prove knowledge of all the characteristics that make a weapon a statutory "firear[m]." Ante, at 610-612; ante, at 621-622 (Ginsburg, J., concurring in judgment). We held in Freed, however, that a § 5861(d) offense may be committed by one with no awareness of either wrongdoing or of all the facts that constitute the offense.^[14] 401 U. S., at 607-610. Nevertheless, the Court, asserting that the Government "gloss[es] over the distinction between grenades and guns," determines that "the gap between Freed and this case is too wide to bridge." Ante, at 610. As such, the Court instead reaches the rather surprising conclusion that guns are more analogous to food stamps than to hand grenades.^[15] Even if [632] one accepts that dubious proposition, the Court founds it upon a faulty premise: its mischaracterization of the Government's submission as one contending that "all guns . . . are dangerous devices that put gun owners on notice . . . ." Ante, at 608 (emphasis added).^[16] Accurately identified, the Government's position presents the question whether guns such as the one possessed by petitioner "`are highly dangerous offensive weapons, no less dangerous than the narcotics' " in Balint or the hand grenades in Freed, see ante, at 609 (quoting Freed, 401 U. S., at 609).^[17]

[633] Thus, even assuming that the Court is correct that the mere possession of an ordinary rifle or pistol does not entail sufficient danger to alert one to the possibility of regulation, that conclusion does not resolve this case. Petitioner knowingly possessed a semiautomatic weapon that was readily convertible into a machinegun. The "`character and nature' " of such a weapon is sufficiently hazardous to place the possessor on notice of the possibility of regulation. See Posters `N' Things, Ltd. v. United States, ante, at 525 (citation omitted).^[18] No significant difference exists between [634] imposing upon the possessor a duty to determine whether such a weapon is registered, Freed, 401 U. S., at 607-610, and imposing a duty to determine whether that weapon has been converted into a machinegun.

Cases arise, of course, in which a defendant would not know that a device was dangerous unless he knew that it was a "firearm" as defined in the Act. Freed was such a case; unless the defendant knew that the device in question was a hand grenade, he would not necessarily have known that it was dangerous. But given the text and nature of the statute, it would be utterly implausible to suggest that Congress intended the owner of a sawed-off shotgun to be criminally liable if he knew its barrel was 17.5 inches long but not if he mistakenly believed the same gun had an 18inch barrel. Yet the Court's holding today assumes that Congress intended that bizarre result.

The enforcement of public welfare offenses always entails some possibility of injustice. Congress nevertheless has repeatedly decided that an overriding public interest in health or safety may outweigh that risk when a person is dealing with products that are sufficiently dangerous or deleterious to make it reasonable to presume that he either knows, or should know, whether those products conform to special regulatory requirements. The dangerous character of the product is reasonably presumed to provide sufficient notice of the probability of regulation to justify strict enforcement against those who are merely guilty of negligent, rather than willful, misconduct.

The National Firearms Act is within the category of public welfare statutes enacted by Congress to regulate highly dangerous items. The Government submits that a conviction under such a statute may be supported by proof that the [635] defendant "knew the item at issue was highly dangerous and of a type likely to be subject to regulation." Brief for United States 9.^[19] It is undisputed that the evidence in this case met that standard. Nevertheless, neither Justice Thomas for the Court nor Justice Ginsburg has explained why such a knowledge requirement is unfaithful to our cases or to the text of the Act.^[20] Instead, following the approach of their decision in United States v. Harris, 959 F. 2d 246, 260-261 (CADC) (per curiam), cert. denied sub nom. Smith v. United States, 506 U. S. 932 (1992), they have simply explained why, in their judgment, it would be unfair to punish the possessor of this machinegun.

III

The history and interpretation of the National Firearms Act supports the conclusion that Congress did not intend to [636] require knowledge of all the facts that constitute the offense of possession of an unregistered weapon. During the first 30 years of enforcement of the 1934 Act, consistent with the absence of a knowledge requirement and with the reasoning in Balint, courts uniformly construed it not to require knowledge of all the characteristics of the weapon that brought it within the statute. In a case decided in 1963, then-Judge Blackmun reviewed the earlier cases and concluded that the defendant's knowledge that he possessed a gun was "all the scienter which the statute requires." Sipes v. United States, 321 F. 2d 174, 179 (CA8), cert. denied, 375 U. S. 913 (1963).

Congress subsequently amended the statute twice, once in 1968 and again in 1986. Both amendments added knowledge requirements to other portions of the Act,^[21] but neither the text nor the history of either amendment discloses an intent to add any other knowledge requirement to the possession of an unregistered firearm offense. Given that, with only one partial exception,^[22] every federal tribunal to address the question had concluded that proof of knowledge of all the facts constituting a violation was not required for a conviction [637] under § 5861(d),^[23] we may infer that Congress intended that interpretation to survive. See Lorillard v. Pons, 434 U. S. 575, 580 (1978).

In short, petitioner's knowledge that he possessed an item that was sufficiently dangerous to alert him to the likelihood of regulation would have supported a conviction during the first half century of enforcement of this statute. Unless application of that standard to a particular case violates the Due Process Clause,^[24] it is the responsibility of Congress, not this Court, to amend the statute if Congress deems it unfair or unduly strict.

IV

On the premise that the purpose of the mens rea requirement is to avoid punishing people "for apparently innocent activity," Justice Ginsburg concludes that proof of knowledge that a weapon is "`a dangerous device of a type as would alert one to the likelihood of regulation' " is not an adequate mens rea requirement, but that proof of knowledge that the weapon possesses "`every last characteristic' " that subjects it to regulation is. Ante, at 622-623, and n. 5 (Ginsburg, J., concurring in judgment) (quoting the trial court's jury instruction).

[638] Assuming that "innocent activity" describes conduct without any consciousness of wrongdoing, the risk of punishing such activity can be avoided only by reading into the statute the common-law concept of mens rea: "an evil purpose or mental culpability." Morissette, 342 U. S., at 252.^[25] But even petitioner does not contend that the Government must prove guilty intent or intentional wrongdoing. Instead, the "mens rea " issue in this case is simply what knowledge requirement, if any, Congress implicitly included in this offense. There are at least five such possible knowledge requirements, four of which entail the risk that a completely innocent mistake will subject a defendant to punishment.

First, a defendant may know that he possesses a weapon with all of the characteristics that make it a "firearm" within the meaning of the statute and also know that it has never been registered, but be ignorant of the federal registration requirement. In such a case, we presume knowledge of the law even if we know the defendant is "innocent" in the sense that Justice Ginsburg uses the word. Second, a defendant may know that he possesses a weapon with all of the characteristics of a statutory firearm and also know that the law requires that it be registered, but mistakenly believe that it is in fact registered. Freed squarely holds that this defendant's "innocence" is not a defense. Third, a defendant [639] may know only that he possesses a weapon with all of the characteristics of a statutory firearm. Neither ignorance of the registration requirement nor ignorance of the fact that the weapon is unregistered protects this "innocent" defendant. Fourth, a defendant may know that he possesses a weapon that is sufficiently dangerous to likely be regulated, but not know that it has all the characteristics of a statutory firearm. Petitioner asserts that he is an example of this "innocent" defendant. Fifth, a defendant may know that he possesses an ordinary gun and, being aware of the widespread lawful gun ownership in the country, reasonably assume that there is no need "to inquire about the need for registration." Ante, at 622 (Ginsburg, J., concurring in judgment). That, of course, is not this case. See supra, at 624, and n. 1.^[26]

Justice Ginsburg treats the first, second, and third alternatives differently from the fourth and fifth. Her acceptance of knowledge of the characteristics of a statutory "firearm" as a sufficient predicate for criminal liability—despite ignorance of either the duty to register or the fact of nonregistration, or both—must rest on the premise that such knowledge would alert the owner to the likelihood of regulation, thereby depriving the conduct of its "apparen[t] innocen[ce]." Yet in the fourth alternative, a jury determines just such knowledge: that the characteristics of the weapon known to the defendant would alert the owner to the likelihood of regulation.

In short, Justice Ginsburg's reliance on "the purpose of the mens rea requirement—to shield people against punishment for apparently innocent activity," ante, at 622, neither explains why ignorance of certain facts is a defense although [640] ignorance of others is not, nor justifies her disagreement with the jury's finding that this defendant knew facts that should have caused him to inquire about the need for registration.^[27]

V

This case presents no dispute about the dangerous character of machineguns and sawed-off shotguns. Anyone in possession of such a weapon is "standing in responsible relation to a public danger." See Dotterweich, 320 U. S., at 281 (citation omitted). In the National Firearms Act, Congress determined that the serious threat to health and safety posed by the private ownership of such firearms warranted the imposition of a duty on the owners of dangerous weapons to determine whether their possession is lawful. Semiautomatic weapons that are readily convertible into machineguns are sufficiently dangerous to alert persons who knowingly possess them to the probability of stringent public regulation. The jury's finding that petitioner knowingly possessed "a dangerous device of a type as would alert one to the likelihood of regulation" adequately supports the conviction.

Accordingly, I would affirm the judgment of the Court of Appeals.

[1] As used here, the terms "automatic" and "fully automatic" refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted. Such weapons are "machineguns" within the meaning of the Act. We use the term "semiautomatic" to designate a weapon that fires only one shot with each pull of the trigger, and which requires no manual manipulation by the operator to place another round in the chamber after each round is fired.

[2] In what the parties regard as a mistranscription, the transcript contains the word "suggested" instead of "which subjects it."

[3] By interpreting such public welfare offenses to require at least that the defendant know that he is dealing with some dangerous or deleterious substance, we have avoided construing criminal statutes to impose a rigorous form of strict liability. See, e. g., United States v. International Minerals & Chemical Corp., 402 U. S. 558, 563-564 (1971) (suggesting that if a person shipping acid mistakenly thought that he was shipping distilled water, he would not violate a statute criminalizing undocumented shipping of acids). True strict liability might suggest that the defendant need not know even that he was dealing with a dangerous item. Nevertheless, we have referred to public welfare offenses as "dispensing with" or "eliminating" a mens rea requirement or "mental element," see, e. g., Morissette, 342 U. S., at 250, 263; United States v. Dotterweich, 320 U. S. 277, 281 (1943), and have described them as strict liability crimes, United States v. United States Gypsum Co., 438 U. S. 422, 437 (1978). While use of the term "strict liability" is really a misnomer, we have interpreted statutes defining public welfare offenses to eliminate the requirement of mens rea; that is, the requirement of a "guilty mind" with respect to an element of a crime. Under such statutes we have not required that the defendant know the facts that make his conduct fit the definition of the offense. Generally speaking, such knowledge is necessary to establish mens rea, as is reflected in the maxim ignorantia facti excusat. See generally J. Hawley & M. McGregor, Criminal Law 26-30 (1899); R. Perkins, Criminal Law 785-786 (2d ed. 1969); G. Williams, Criminal Law: The General Part 113— 174 (1953). Cf. Queen v. Tolson, 23 Q. B. 168, 187 (1889) (Stephen, J.) ("[I]t may, I think, be maintained that in every case knowledge of fact [when not appearing in the statute] is to some extent an element of criminality as much as competent age and sanity").

[4] A grenade is a "firearm" under the Act. 26 U. S. C. §§ 5845(a)(8), 5845(f)(1)(B).

[5] The dissent's assertions to the contrary notwithstanding, the Government's position, "[a]ccurately identified," post, at 632, is precisely that "guns in general" are dangerous items. The Government, like the dissent, cites Sipes v. United States, 321 F. 2d 174, 179 (CA8), cert. denied, 375 U. S. 913 (1963), for the proposition that a defendant's knowledge that the item he possessed "was a gun" is sufficient for a conviction under § 5861(d). Brief for United States 21. Indeed, the Government argues that "guns" should be placed in the same category as the misbranded drugs in Dotterweich and the narcotics in Balint because "`one would hardly be surprised to learn' (Freed, 401 U. S. at 609) that there are laws that affect one's rights of gun ownership." Brief for United States 22. The dissent relies upon the Government's repeated contention that the statute requires knowledge that "the item at issue was highly dangerous and of a type likely to be subject to regulation." Id. , at 9. But that assertion merely patterns the general language we have used to describe the mens rea requirement in public welfare offenses and amounts to no more than an assertion that the statute should be treated as defining a public welfare offense.

[6] The dissent asserts that the question is not whether all guns are deleterious devices, but whether a gun "such as the one possessed by petitioner," post, at 632 (which the dissent characterizes as a "semiautomatic weapon that [is] readily convertible into a machinegun," post, at 624, 633, 640), is such a device. If the dissent intends to suggest that the category of readily convertible semiautomatics provides the benchmark for defining the knowledge requirement for § 5861(d), it is difficult to see how it derives that class of weapons as a standard. As explained above, see n. 5, supra, the Government's argument has nothing to do with this ad hoc category of weapons. And the statute certainly does not suggest that any significance should attach to readily convertible semiautomatics, for that class bears no relation to the definitions in the Act. Indeed, in the absence of any definition, it is not at all clear what the contours of this category would be. The parties assume that virtually all semiautomatics may be converted into automatics, and limiting the class to those "readily" convertible provides no real guidance concerning the required mens rea. In short, every owner of a semiautomatic rifle or handgun would potentially meet such a mens rea test.

But the dissent apparently does not conceive of the mens rea requirement in terms of specific categories of weapons at all, and rather views it as a more fluid concept that does not require delineation of any concrete elements of knowledge that will apply consistently from case to case. The dissent sees no need to define a class of items the knowing possession of which satisfies the mens rea element of the offense, for in the dissent's view the exact content of the knowledge requirement can be left to the jury in each case. As long as the jury concludes that the item in a given case is "sufficiently dangerous to alert [the defendant] to the likelihood of regulation," post, at 637, the knowledge requirement is satisfied. See also post, at 624, 639, 640. But the mens rea requirement under a criminal statute is a question of law, to be determined by the court. Our decisions suggesting that public welfare offenses require that the defendant know that he stands in "responsible relation to a public danger," Dotterweich, 320 U. S., at 281, in no way suggest that what constitutes a public danger is a jury question. It is for courts, through interpretation of the statute, to define the mens rea required for a conviction. That task cannot be reduced to setting a general "standard," post, at 637, that leaves it to the jury to determine, based presumably on the jurors' personal opinions, whether the items involved in a particular prosecution are sufficiently dangerous to place a person on notice of regulation.

Moreover, as our discussion above should make clear, to determine as a threshold matter whether a particular statute defines a public welfare offense, a court must have in view some category of dangerous and deleterious devices that will be assumed to alert an individual that he stands in "responsible relation to a public danger." Dotterweich, supra, at 281. The truncated mens rea requirement we have described applies precisely because the court has determined that the statute regulates in a field where knowing possession of some general class of items should alert individuals to probable regulation. Under the dissent's approach, however, it seems that every regulatory statute potentially could be treated as a public welfare offense as long as the jury—not the court—ultimately determines that the specific items involved in a prosecution were sufficiently dangerous.

[7] See, e. g., 18 U. S. C. §§ 921-928 (1988 ed. and Supp. IV) (requiring licensing of manufacturers, importers, and dealers of guns and regulating the sale, possession, and interstate transportation of certain guns).

[8] See U. S. Dept. of Justice, Bureau of Justice Statistics, Source book of Criminal Justice Statistics 209 (1992) (Table 2.58).

[9] For example, as of 1990, 39 States allowed adult residents, who are not felons or mentally infirm, to purchase a rifle or shotgun simply with proof of identification (and in some cases a simultaneous application for a permit). See U. S. Dept. of Justice, Bureau of Justice Statistics, Identifying Persons, Other Than Felons, Ineligible to Purchase Firearms 114, Exh. B.4 (1990); U. S. Congress, Office of Technology Assessment, Automated Record Checks of Firearm Purchasers 27 (July 1991). See also M. Cooper, Reassessing the Nation's Gun Laws, Editorial Research Reports 158, 160 (Jan.—Mar. 1991) (table) (suggesting the total is 41 States); Dept. of Treasury, Bureau of Alcohol, Tobacco and Firearms, State Laws and Published Ordinances—Firearms (19th ed. 1989).

[10] We, of course, express no view concerning the inferences a jury may have drawn regarding petitioner's knowledge from the evidence in this case.

[11] The Government contends that Congress intended precisely such an aid to obtaining convictions, because requiring proof of knowledge would place too heavy a burden on the Government and obstruct the proper functioning of § 5861(d). Cf. United States v. Balint, 258 U. S. 250, 254 (1922) (difficulty of proving knowledge suggests Congress did not intend to require mens rea ). But knowledge can be inferred from circumstantial evidence, including any external indications signaling the nature of the weapon. And firing a fully automatic weapon would make the regulated characteristics of the weapon immediately apparent to its owner. In short, we are confident that when the defendant knows of the characteristics of his weapon that bring it within the scope of the Act, the Government will not face great difficulty in proving that knowledge. Of course, if Congress thinks it necessary to reduce the Government's burden at trial to ensure proper enforcement of the Act, it remains free to amend § 5861(d) by explicitly eliminating a mens rea requirement.

[12] Leading English cases developing a parallel theory of regulatory offenses similarly involved violations punishable only by fine or short-term incarceration. See, e. g., Queen v. Woodrow, 15 M. & W. 404, 153 Eng. Rep. 907 (Ex. 1846) (fine of £200 for adulterated tobacco); Hobbs v. Winchester Corp., [1910] 2 K. B. 471 (maximum penalty of three months' imprisonment for sale of unwholesome meat).

[13] Cf. Queen v. Tolson, 23 Q. B., at 177 (Wills, J.) (In determining whether a criminal statute dispenses with mens rea, "the nature and extent of the penalty attached to the offence may reasonably be considered. There is nothing that need shock any mind in the payment of a small pecuniary penalty by a person who has unwittingly done something detrimental to the public interest").

[14] But see, e. g., State v. Lindberg, 125 Wash. 51, 215 P. 41 (1923) (applying the public welfare offense rationale to a felony).

[15] See also United States Gypsum, 438 U. S., at 442, n. 18 (noting that an individual violation of the Sherman Antitrust Act is a felony punishable by three years in prison or a fine not exceeding $100,000 and stating that "[t]he severity of these sanctions provides further support for our conclusion that the [Act] should not be construed as creating strict-liability crimes"). Cf. Holdridge v. United States, 282 F. 2d 302, 310 (CA8 1960) (Blackmun, J.) ("[W]here a federal criminal statute omits mention of intent and . . . where the penalty is relatively small, where conviction does not gravely besmirch, [and] where the statutory crime is not one taken over from the common law, . . . the statute can be construed as one not requiring criminal intent").

[16] Title 18 U. S. C. § 3559 makes any crime punishable by more than one year in prison a felony.

[17] In reaching our conclusion, we find it unnecessary to rely on the rule of lenity, under which an ambiguous criminal statute is to be construed in favor of the accused. That maxim of construction "is reserved for cases where, `[a]fter "seiz[ing] every thing from which aid can be derived,"` the Court is `left with an ambiguous statute.' " Smith v. United States, 508 U. S. 223, 239 (1993) (quoting United States v. Bass, 404 U. S. 336, 347 (1971), in turn quoting United States v. Fisher, 2 Cranch 358, 386 (1805)). See also United States v. R. L. C., 503 U. S. 291, 311 (1992) (Thomas, J., concurring in part and concurring in judgment); Chapman v. United States, 500 U. S. 453, 463 (1991) (rule of lenity inapplicable unless there is a "`grievous ambiguity or uncertainty' " in the statute). Here, the background rule of the common law favoring mens rea and the substantial body of precedent we have developed construing statutes that do not specify a mental element provide considerable interpretive tools from which we can "seize aid," and they do not leave us with the ultimate impression that § 5861(d) is "grievous[ly]" ambiguous. Certainly, we have not concluded in the past that statutes silent with respect to mens rea are ambiguous. See, e. g., United States v. Balint, 258 U. S. 250 (1922).

[1] Contrary to the dissent's suggestion, we have not confined the presumption of mens rea to statutes codifying traditional common-law offenses, but have also applied the presumption to offenses that are "entirely a creature of statute," post, at 625, such as those at issue in Liparota, Gypsum, and, most recently,Posters `N' Things, Ltd. v. United States, ante, at 522-523.

[2] Some Courts of Appeals have adopted a variant of the third reading, holding that the Government must show that the defendant knew the gun was a machinegun, but allowing inference of the requisite knowledge where a visual inspection of the gun would reveal that it has been converted into an automatic weapon. See United States v. O'Mara, 963 F. 2d 1288, 1291 (CA9 1992); United States v. Anderson, 885 F. 2d 1248, 1251 (CA5 1989) (en banc).

[3] The mens rea presumption requires knowledge only of the facts that make the defendant's conduct illegal, lest it conflict with the related presumption, "deeply rooted in the American legal system," that, ordinarily, "ignorance of the law or a mistake of law is no defense to criminal prosecution." Cheek v. United States, 498 U. S. 192, 199 (1991). Cf. United States v. Freed, 401 U. S. 601, 612 (1971) (Brennan, J., concurring in judgment) ("If the ancient maxim that `ignorance of the law is no excuse' has any residual validity, it indicates that the ordinary intent requirement— mens rea —of the criminal law does not require knowledge that an act is illegal, wrong, or blameworthy."). The maxim explains why some "innocent" actors—for example, a defendant who knows he possesses a weapon with all of the characteristics that subject it to registration, but was unaware of the registration requirement, or thought the gun was registered—may be convicted under § 5861(d), see post, at 638. Knowledge of whether the gun was registered is so closely related to knowledge of the registration requirement that requiring the Government to prove the former would in effect require it to prove knowledge of the law. Cf. Freed, supra, at 612-614 (Brennan, J., concurring in judgment).

[4] The indictment charged Staples with possession of two unregistered machineguns, but the jury found him guilty of knowingly possessing only one of them. Tr. 477.

[5] The trial court instructed the jury:

"[A] person is knowingly in possession of a thing if his possession occurred voluntarily and intentionally and not because of mistake or accident or other innocent reason. The purpose of adding the word `knowingly' is to insure that no one can be convicted of possession of a firearm he did not intend to possess. The Government need not prove the defendant knows he's dealing with a weapon possessing every last characteristic [which subjects it] to the regulation. It would be enough to prove he knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of regulation. If he has such knowledge and if the particular item is, in fact, regulated, then that person acts at his peril. Mere possession of an unregistered firearm is a violation of the law of the United States, and it is not necessary for the Government to prove that the defendant knew that the weapon in his possession was a firearm within the meaning of the statute, only that he knowingly possessed the firearm." Id., at 465.

[1] Indeed, only about 15 percent of all the guns in the United States are semiautomatic. See National Rifle Association, Fact Sheet, SemiAutomatic Firearms 1 (Feb. 1, 1994). Although it is not known how many of those weapons are readily convertible into machineguns, it is obviously a lesser share of the total.

[2] See U. S. Dept. of Justice, Attorney General's Task Force on Violent Crime: Final Report 29, 32 (Aug. 17, 1981) (stating that over an 18-month period over 20 percent of the machineguns seized or purchased by the Bureau of Alcohol, Tobacco and Firearms had been converted from semiautomatic weapons by "simple tool work or the addition of readily available parts") (citing U. S. Dept. of Treasury, Bureau of Alcohol, Tobacco and Firearms, Firearms Case Summary (Washington: U. S. Govt. Printing Office 1981)).

[3] The Seventh Circuit's comment in a similar case is equally apt here: "The crime is possessing an unregistered firearm—not `knowingly' possessing an unregistered firearm, or possessing a weapon knowing it to be a firearm, or possessing a firearm knowing it to be unregistered. . . . [Petitioner's] proposal is not that we interpret a knowledge or intent requirement in § 5861(d); it is that we invent one." United States v. Ross, 917 F. 2d 997, 1000 (1990) (per curiam) (emphasis in original), cert. denied, 498 U. S. 1122 (1991).

[4] "The late 1920s and early 1930s brought . . . a growing perception of crime both as a major problem and as a national one. . . . [C]riminal gangs found the submachinegun (a fully automatic, shoulder-fired weapon utilizing automatic pistol cartridges) and sawed-off shotgun deadly for close-range fighting." Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 590 (1987).

[5] The Senate Report on the bill explained: "The gangster as a law violator must be deprived of his most dangerous weapon, the machinegun. Your committee is of the opinion that limiting the bill to the taxing of sawed-off guns and machineguns is sufficient at this time. It is not thought necessary to go so far as to include pistols and revolvers and sporting arms. But while there is justification for permitting the citizen to keep a pistol or revolver for his own protection without any restriction, there is no reason why anyone except a law officer should have a machinegun or sawed-off-shotgun." S. Rep.No. 1444,73d Cong., 2d Sess.,1-2 (1934).

[6] In the Balint case, after acknowledging the general common-law rule that made knowledge of the facts an element of every crime, we held that as to statutory crimes the question is one of legislative intent,and that the Anti-Narcotic Act should be construed to authorize "punishment of a person for an act in violation of law[,][even] when ignorant of the facts making it so."Balint, 258 U. S., at 251-252.The "policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells." Id., at 253.

[7] See National Firearms Act: Hearings on H. R. 9066 before the House Committee on Ways and Means, 73d Cong., 2d Sess., 6 (1934).

[8] "Omission of a mental element is the norm for statutes designed to deal with inaction. Not registering your gun, not cleaning up your warehouse, United States v. Park, 421 U. S. 658 . . . (1975), and like `acts' are done without thinking. Often the omission occurs because of lack of attention. . . . Yet Congress may have sound reasons for requiring people to investigate and act, objectives that cannot be achieved if the courts add mental elements to the statutes." Ross, 917 F. 2d, at 1000.

[9] These statutes are sometimes referred to as "strict liability" offenses. As the Court notes, because the defendant must know that he is engaged in the type of dangerous conduct that is likely to be regulated, the use of the term "strict liability" to describe these offenses is inaccurate. Ante, at 607-608, n. 3. I therefore use the term "public welfare offense" to describe this type of statute.

[10] See United States v. Balint, 258 U. S. 250 (1922).

[11] See United States v. International Minerals & Chemical Corp., 402 U. S. 558 (1971).

[12] See United States v. Dotterweich, 320 U. S. 277 (1943).

[13] The Court in Morissette v. United States, 342 U. S. 246 (1952), expressing approval of our public welfare offense cases, stated:

"Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static." Id., at 260 (footnotes omitted).

[14] Freed, 401 U. S., at 607 (holding that a violation of § 5861(d) may be established without proof that the defendant was aware of the fact that the firearm he possessed was unregistered). Our holding in Freed is thus squarely at odds with the Court's conclusion that the "defendant must know the facts that make his conduct illegal," ante, at 619.

[15] The Court's and Justice Ginsburg's reliance upon Liparota v. United States, 471 U. S. 419 (1985), is misplaced. Ante, at 610-612; ante, at 621-622. Although the Court is usually concerned with fine nuances of statutory text, its discussion of Liparota simply ignores the fact that the food stamp fraud provision, unlike § 5861(d), contained the word "knowingly." The Members of the Court in Liparota disagreed on the proper interpretation. The dissenters accepted the Government's view that the term merely required proof that the defendant had knowledge of the facts that constituted the crime. See Liparota, 471 U. S., at 442-443 (White, J., dissenting) ("I would read § 2024(b)(1) . . . to require awareness of only the relevant aspects of one's conduct rendering it illegal, not the fact of illegality"). The majority, however, concluded that "knowingly" also connoted knowledge of illegality. Id., at 424-425. Because neither "knowingly" nor any comparable term appears in § 5861(d), the statute before us today requires even less proof of knowledge than the dissenters would have demanded in Liparota.

[16] Justice Gins burg similarly assumes that the character of "all guns " cannot be said to place upon defendants an obligation "to inquire about the need for registration." Ante, at 622 (emphasis added).

[17] The Government does note that some Courts of Appeals have required proof of knowledge only that "the weapon was `a firearm, within the general meaning of that term,' " Brief for United States 24-25 (citing cases). Contrary to the assertion by the Court, ante, at 632, n. 5, however, the Government does not advance this test as the appropriate knowledge requirement, but instead supports the one used by other Courts of Appeals. Compare the Court's description of the Government's position, ibid., with the following statements in the Government's brief: "A defendant may be convicted of such offenses so long as the government proves that he knew the item at issue was highly dangerous and of a type likely to be subject to regulation." Brief for United States 9. "[T]he court of appeals correctly required the government to prove only that petitioner knew that he possessed a dangerous weapon likely to be subject to regulation." Id., at 13. "B. The intent requirement applicable to Section 5861(d) is knowledge that one is dealing with a dangerous item of a type likely to be subject to regulation." Id., at 16.

"But where a criminal statute involves regulation of a highly hazardous substance—and especially where it penalizes a failure to act or to comply with a registration scheme—the defendant's knowledge that he was dealing with such a substance and that it was likely to be subject to regulation provides sufficient intent to support a conviction." Id., at 17-18. "Rather, absent contrary congressional direction, knowledge of the highly dangerous nature of the articles involved and the likelihood that they are subject to regulation takes the place of the more rigorous knowledge requirement applicable where apparently innocent and harmless devices are subject to regulation." Id., at 20. "But the instruction did not require the government to prove that petitioner knew his weapon `possess[ed] every last characteristic [which subjects it] to regulation'; he need only have `know[n] that he [was] dealing with a dangerous device of a type as would alert one to the likelihood of regulation.' Tr. 465.

"That instruction accurately describes the mental state necessary for a violation of Section 5861(d)." Id., at 23. "[P]roof that a defendant was on fair notice that the item he possessed was highly dangerous and likely to be regulated is sufficient to support a conviction." Id., at 24.

[18] The Court and Justice Ginsburg apparently assume that the outer limits of any such notice can be no broader than the category of dangerous objects that Congress delineated as "firearms." Ante, at 611-612; ante, at 621-622. Our holding in Posters `N' Things, illustrates the error in that assumption. A retailer who may not know whether certain merchandise is actually drug paraphernalia, as that term is defined in the relevant federal statute, may nevertheless violate the law if "aware that customers in general are likely to use the merchandise with drugs." Ante, at 524. The owner of a semiautomatic weapon that is readily convertible into a machinegun can certainly be aware of its dangerous nature and the consequent probability of regulation even if he does not know whether the weapon is actually a machinegun. If ignorance of the precise characteristics that render an item forbidden should be a defense, items that are likely to be "drug paraphernalia" are no more obviously dangerous, and thus regulated, than items that are likely to be "firearms."

[19] As a matter of law, this is the level of knowledge required by the statute. Therefore, contrary to the Court's suggestion, ante, at 612, n. 6, I have not left the determination of the "exact content of the knowledge requirement" to the jury. I only leave to the jury its usual function: the application of this legal standard to the facts. In performing this function, juries are frequently required to determine if a law has been violated by application of just such a "general `standard.' " See, e. g., Posters `N' Things, ante, at 523-525; Miller v. California, 413 U. S. 15, 24 (1973).

[20] The Court also supports its conclusion on the basis of the purported disparity between the penalty provided by this statute and those of other regulatory offenses. Although a modest penalty may indicate that a crime is a public welfare offense, such a penalty is not a requisite characteristic of public welfare offenses. For example, the crime involved in Balint involved punishment of up to five years' imprisonment. See Dotterweich, 320 U. S., at 285; see also Morissette, 342 U. S., at 251, n. 8 (noting that rape of one too young to consent is an offense "in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent"). Moreover, congressional authorization of a range of penalties in some cases—petitioner, for instance, is on probation—demonstrates a recognition that relatively innocent conduct should be punished less severely.

[21] Significantly, in 1968, Congress included a knowledge requirement in § 5861(l ). 26 U. S. C. § 5861(l ) (making it unlawful "to make, or cause the making of, a false entry on any application, return, or record required by this chapter, knowing such entry to be false") (emphasis added). "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Rodriguez v. United States, 480 U. S. 522, 525 (1987) (internal quotation marks and citations omitted); see also Lawrence County v. Lead-Deadwood School Dist. No. 40-1, 469 U. S. 256, 267-268 (1985).

[22] United States v. Herbert, 698 F. 2d 981, 986-987 (CA9), cert. denied, 464 U. S. 821 (1983) (requiring the Government to prove knowledge of all the characteristics of a weapon only when no external signs indicated that the weapon was a "firearm"). Not until 1989 did a Court of Appeals adopt the view of the majority today. See United States v. Williams, 872 F. 2d 773 (CA6).

[23] See, e. g., United States v. Gonzalez, 719 F. 2d 1516, 1522 (CA11 1983), cert. denied, 465 U. S. 1037 (1984); Morgan v. United States, 564 F. 2d 803, 805-806 (CA8 1977); United States v. Cowper, 503 F. 2d 130, 132-133 (CA6 1974), cert. denied, 420 U. S. 930 (1975); United States v. DeBartolo, 482 F. 2d 312, 316 (CA1 1973); United States v. Vasquez, 476 F. 2d 730, 732 (CA5), cert. denied, 414 U. S. 836 (1973), overruled by United States v. Anderson, 885 F. 2d 1248 (CA5 1989) (en banc).

And, as I have already noted, United States v. Freed, 401 U. S. 601 (1971), was consistent with the Government's position here. Although the Government accepted the burden of proving that Freed knew that the item he possessed was a hand grenade, the possessor of an unfamiliar object such as a hand grenade would not know that it was "a dangerous item of a type likely to be subject to regulation," Brief for United States 16; see also id., at 20, 23, 24, unless he knew what it was.

[24] Petitioner makes no such claim in this Court.

[25] Our use of the term mens rea has not been consistent. In Morissette, we used the term as if it always connoted a form of wrongful intent. In other cases, we employ it simply to mean whatever level of knowledge is required for any particular crime. See, e. g., United States v. Bailey, 444 U. S. 394, 403 (1980). In this sense, every crime except a true strictliability offense contains a mens rea requirement. For instance, the Court defined mens rea in Liparota v. United States, 471 U. S., at 426, as "knowledge of illegality." In dissent, however, Justice White equated the term with knowledge of the facts that make the conduct illegal. Id., at 442-443. Today, the Court assigns the term the latter definition, ante, at 605, but in fact requires proof of knowledge of only some of the facts that constitute the violation, ante, at 609 (not requiring proof of knowledge of the fact that the gun is unregistered).

[26] Although I disagree with the assumption that "widespread lawful gun ownership" provides a sufficient reason for believing that there is no need to register guns (there is also widespread lawful automobile ownership), acceptance of that assumption neither justifies the majority's holding nor contradicts my conclusion on the facts of this case.

[27] In addition, contrary to Justice Ginsburg's assumption, if one reads the term "firearm" from the quoted section of the indictment to mean "gun," the indictment still charges an offense under § 5861(d) and does not differ from the critical jury instruction. See ante, at 622-623. Even if Justice Ginsburg is correct that there is a technical variance, petitioner makes no claim that any such variance prejudiced him. The wording of the indictment, of course, sheds no light on the proper interpretation of the underlying statutory text. Although the repeated use of a term in a statute may shed light on the statute's construction, see Ratzlaf v. United States, 510 U. S. 135, 143 (1994), such use in an indictment is irrelevant to that question.

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.

CHIEF JUSTICE ROBERTS, delivered the opinion of the Court.

Federal law makes it a crime to transmit in interstate commerce "any communication containing any threat . . . to injure the person of another." 18 U. S. C. §875(c). Petitioner was convicted of violating this provision under instructions that required the jury to find that he communicated what a reasonable person would regard as a threat. The question is whether the statute also requires that the defendant be aware of the threatening nature of the communication, and—if not—whether the First Amendment requires such a showing.

I

A

Anthony Douglas Elonis was an active user of the social networking Web site Facebook. Users of that Web site may post items on their Facebook page that are accessible to other users, including Facebook "friends" who are notified when new content is posted. In May 2010, Elonis's wife of nearly seven years left him, taking with her their two young children. Elonis began "listening to more violent music" and posting self-styled "rap" lyrics inspired by the music. App. 204, 226. Eventually, Elonis changed the user name on his Facebook page from his actual name to a rap-style nom de plume, "Tone Dougie," to distinguish himself from his "on-line persona." Id., at 249, 265. The lyrics Elonis posted as "Tone Dougie" included graphically violent language and imagery. This material was often interspersed with disclaimers that the lyrics were "fictitious," with no intentional "resemblance to real persons." Id., at 331, 329. Elonis posted an explanation to another Facebook user that "I'm doing this for me. My writing is therapeutic." Id., at 329; see also id., at 205 (testifying that it "helps me to deal with the pain").

Elonis's co-workers and friends viewed the posts in a different light. Around Halloween of 2010, Elonis posted a photograph of himself and a co-worker at a "Halloween Haunt" event at the amusement park where they worked. In the photograph, Elonis was holding a toy knife against his co-worker's neck, and in the caption Elonis wrote, "I wish." Id., at 340. Elonis was not Facebook friends with the co-worker and did not "tag" her, a Facebook feature that would have alerted her to the posting. Id., at 175; Brief for Petitioner 6, 9. But the chief of park security was a Facebook "friend" of Elonis, saw the photograph, and fired him. App. 114-116; Brief for Petitioner 9.

In response, Elonis posted a new entry on his Facebook page:

"Moles! Didn't I tell y'all I had several? Y'all sayin' I had access to keys for all the f***in' gates. That I have sinister plans for all my friends and must have taken home a couple. Y'all think it's too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I'm still the main attraction. Whoever thought the Halloween Haunt could be so f***in' scary?" App. 332.

This post became the basis for Count One of Elonis's subsequent indictment, threatening park patrons and employees.

Elonis's posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife. Shortly after he was fired, Elonis posted an adaptation of a satirical sketch that he and his wife had watched together. Id., at 164-165, 207. In the actual sketch, called "It's Illegal to Say . . .," a comedian explains that it is illegal for a person to say he wishes to kill the President, but not illegal to explain that it is illegal for him to say that. When Elonis posted the script of the sketch, however, he substituted his wife for the President. The posting was part of the basis for Count Two of the indictment, threatening his wife:

"Hi, I'm Tone Elonis.

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

It's one of the only sentences that I'm not allowed to say. . . .

Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife. . . .

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

But not illegal to say with a mortar launcher.

Because that's its own sentence. . . .

I also found out that it's incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room. . . .

Yet even more illegal to show an illustrated diagram. [diagram of the house]. . . ." Id., at 333.

The details about the home were accurate. Id., at 154. At the bottom of the post, Elonis included a link to the video of the original skit, and wrote, "Art is about pushing limits. I'm willing to go to jail for my Constitutional rights. Are you?" Id., at 333.

After viewing some of Elonis's posts, his wife felt "extremely afraid for [her] life." Id., at 156. A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order). Id., at 148-150. Elonis referred to the order in another post on his "Tone Dougie" page, also included in Count Two of the indictment:

"Fold up your [protection-from-abuse order] and put it in your pocket

Is it thick enough to stop a bullet?

Try to enforce an Order that was improperly granted in the first place

Me thinks the Judge needs an education on true threat jurisprudence

And prison time'll add zeros to my settlement . . .

And if worse comes to worse

I've got enough explosives to take care of the State Police and the Sheriff's Department." Id., at 334.

At the bottom of this post was a link to the Wikipedia article on "Freedom of speech." Ibid. Elonis's reference to the police was the basis for Count Three of his indictment, threatening law enforcement officers.

That same month, interspersed with posts about a movie Elonis liked and observations on a comedian's social commentary, id., at 356-358, Elonis posted an entry that gave rise to Count Four of his indictment:

"That's it, I've had about enough

I'm checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a Kindergarten class

The only question is . . . which one?" Id., at 335.

Meanwhile, park security had informed both local police and the Federal Bureau of Investigation about Elonis's posts, and FBI Agent Denise Stevens had created a Facebook account to monitor his online activity. Id., at 49-51, 125. After the post about a school shooting, Agent Stevens and her partner visited Elonis at his house. Id., at 65-66. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another entry on his Facebook page, called "Little Agent Lady," which led to Count Five:

"You know your s***'s ridiculous when you have the FBI knockin' at yo' door

Little Agent lady stood so close

Took all the strength I had not to turn the b**** ghost

Pull my knife, flick my wrist, and slit her throat

Leave her bleedin' from her jugular in the arms of her partner

[laughter]

So the next time you knock, you best be serving a warrant

And bring yo' SWAT and an explosives expert while you're at it

Cause little did y'all know, I was strapped wit' a bomb

Why do you think it took me so long to get dressed with no shoes on?

I was jus' waitin' for y'all to handcuff me and pat me down

Touch the detonator in my pocket and we're all goin' [BOOM!]

Are all the pieces comin' together?

S***, I'm just a crazy sociopath that gets off playin' you stupid f***s like a fiddle

And if y'all didn't hear, I'm gonna be famous

Cause I'm just an aspiring rapper who likes the attention

who happens to be under investigation for terrorism cause y'all think I'm ready to turn the Valley into Fallujah

But I ain't gonna tell you which bridge is gonna fall into which river or road

And if you really believe this s***

I'll have some bridge rubble to sell you tomorrow

[BOOM!][BOOM!][BOOM!]" Id., at 336.

B

A grand jury indicted Elonis for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent, all in violation of 18 U. S. C. §875(c). App. 14-17. In the District Court, Elonis moved to dismiss the indictment for failing to allege that he had intended to threaten anyone. The District Court denied the motion, holding that Third Circuit precedent required only that Elonis "intentionally made the communication, not that he intended to make a threat." App. to Pet. for Cert. 51a. At trial, Elonis testified that his posts emulated the rap lyrics of the well-known performer Eminem, some of which involve fantasies about killing his ex-wife. App. 225. In Elonis's view, he had posted "nothing . . . that hasn't been said already." Id., at 205. The Government presented as witnesses Elonis's wife and co-workers, all of whom said they felt afraid and viewed Elonis's posts as serious threats. See, e.g., id., at 153, 158.

Elonis requested a jury instruction that "the government must prove that he intended to communicate a true threat." Id., at 21. See also id., at 267-269, 303. The District Court denied that request. The jury instructions instead informed the jury that

"A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Id., at 301.

The Government's closing argument emphasized that it was irrelevant whether Elonis intended the postings to be threats—"it doesn't matter what he thinks." Id., at 286. A jury convicted Elonis on four of the five counts against him, acquitting only on the charge of threatening park patrons and employees. Id., at 309. Elonis was sentenced to three years, eight months' imprisonment and three years' supervised release.

Elonis renewed his challenge to the jury instructions in the Court of Appeals, contending that the jury should have been required to find that he intended his posts to be threats. The Court of Appeals disagreed, holding that the intent required by Section 875(c) is only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat. 730 F. 3d 321, 332 (CA3 2013).

We granted certiorari. 573 U. S. ___ (2014).

II

A

An individual who "transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another" is guilty of a felony and faces up to five years' imprisonment. 18 U. S. C. §875(c). This statute requires that a communication be transmitted and that the communication contain a threat. It does not specify that the defendant must have any mental state with respect to these elements. In particular, it does not indicate whether the defendant must intend that his communication contain a threat.

Elonis argues that the word "threat" itself in Section 875(c) imposes such a requirement. According to Elonis, every definition of "threat" or "threaten" conveys the notion of an intent to inflict harm. Brief for Petitioner 23. See United States v. Jeffries, 692 F. 3d 473, 483 (CA6 2012) (Sutton, J., dubitante). E.g., 11 Oxford English Dictionary 353 (1933) ("to declare (usually conditionally) one's intention of inflicting injury upon"); Webster's New International Dictionary 2633 (2d ed. 1954) ("Law, specif., an expression of an intention to inflict loss or harm on another by illegal means"); Black's Law Dictionary 1519 (8th ed. 2004) ("A communicated intent to inflict harm or loss on another").

These definitions, however, speak to what the statement conveys—not to the mental state of the author. For example, an anonymous letter that says "I'm going to kill you" is "an expression of an intention to inflict loss or harm" regardless of the author's intent. A victim who receives that letter in the mail has received a threat, even if the author believes (wrongly) that his message will be taken as a joke.

For its part, the Government argues that Section 875(c) should be read in light of its neighboring provisions, Sections 875(b) and 875(d). Those provisions also prohibit certain types of threats, but expressly include a mental state requirement of an "intent to extort." See 18 U. S. C. §875(b) (proscribing threats to injure or kidnap made "with intent to extort"); §875(d) (proscribing threats to property or reputation made "with intent to extort"). According to the Government, the express "intent to extort" requirements in Sections 875(b) and (d) should preclude courts from implying an unexpressed "intent to threaten" requirement in Section 875(c). See Russello v. United States, 464 U. S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.").

The Government takes this expressio unius est exclusio alterius canon too far. The fact that Congress excluded the requirement of an "intent to extort" from Section 875(c) is strong evidence that Congress did not mean to confine Section 875(c) to crimes of extortion. But that does not suggest that Congress, at the same time, also meant to exclude a requirement that a defendant act with a certain mental state in communicating a threat. The most we can conclude from the language of Section 875(c) and its neighboring provisions is that Congress meant to proscribe a broad class of threats in Section 875(c), but did not identify what mental state, if any, a defendant must have to be convicted.

In sum, neither Elonis nor the Government has identified any indication of a particular mental state requirement in the text of Section 875(c).

B

The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that "mere omission from a criminal enactment of any mention of criminal intent" should not be read "as dispensing with it." Morissette v. United States, 342 U. S. 246, 250 (1952). This rule of construction reflects the basic principle that "wrongdoing must be conscious to be criminal." Id., at 252. As Justice Jackson explained, this principle is "as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Id., at 250. The "central thought" is that a defendant must be "blameworthy in mind" before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Id., at 252; 1 W. LaFave, Substantive Criminal Law §5.1, pp. 332-333 (2d ed. 2003). Although there are exceptions, the "general rule" is that a guilty mind is "a necessary element in the indictment and proof of every crime." United States v. Balint, 258 U. S. 250, 251 (1922). We therefore generally "interpret[ ] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them." United States v. X-Citement Video, Inc., 513 U. S. 64, 70 (1994).

This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim "ignorance of the law is no excuse" 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," Staples v. United States, 511 U. S. 600, 608, n. 3 (1994), even if he does not know that those facts give rise to a crime.

Morissette, for example, involved an individual who had taken spent shell casings from a Government bombing range, believing them to have been abandoned. During his trial for "knowingly convert[ing]" property of the United States, the judge instructed the jury that the only question was whether the defendant had knowingly taken the property without authorization. 342 U. S., at 248-249. This Court reversed the defendant's conviction, ruling that he had to know not only that he was taking the casings, but also that someone else still had property rights in them. He could not be found liable "if he truly believed [the casings] to be abandoned." Id., at 271; see id., at 276.

By the same token, in Liparota v. United States, we considered a statute making it a crime to knowingly possess or use food stamps in an unauthorized manner. 471 U. S. 419, 420 (1985). The Government's argument, similar to its position in this case, was that a defendant's conviction could be upheld if he knowingly possessed or used the food stamps, and in fact his possession or use was unauthorized. Id., at 423. But this Court rejected that interpretation of the statute, because it would have criminalized "a broad range of apparently innocent conduct" and swept in individuals who had no knowledge of the facts that made their conduct blameworthy. Id., at 426. For example, the statute made it illegal to use food stamps at a store that charged higher prices to food stamp customers. Without a mental state requirement in the statute, an individual who unwittingly paid higher prices would be guilty under the Government's interpretation. Ibid. The Court noted that Congress could have intended to cover such a "broad range of conduct," but declined "to adopt such a sweeping interpretation" in the absence of a clear indication that Congress intended that result. Id., at 427. The Court instead construed the statute to require knowledge of the facts that made the use of the food stamps unauthorized. Id., at 425.

To take another example, in Posters `N' Things, Ltd. v. United States, this Court interpreted a federal statute prohibiting the sale of drug paraphernalia. 511 U. S. 513 (1994). Whether the items in question qualified as drug paraphernalia was an objective question that did not depend on the defendant's state of mind. Id., at 517-522. But, we held, an individual could not be convicted of selling such paraphernalia unless he "knew that the items at issue [were] likely to be used with illegal drugs." Id., at 524. Such a showing was necessary to establish the defendant's culpable state of mind.

And again, in X-Citement Video, we considered a statute criminalizing the distribution of visual depictions of minors engaged in sexually explicit conduct. 513 U. S., at 68. We rejected a reading of the statute which would have required only that a defendant knowingly send the prohibited materials, regardless of whether he knew the age of the performers. Id., at 68-69. We held instead that a defendant must also know that those depicted were minors, because that was "the crucial element separating legal innocence from wrongful conduct." Id., at 73. See also Staples, 511 U. S., at 619 (defendant must know that his weapon had automatic firing capability to be convicted of possession of such a weapon).

When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute "only that mens rea which is necessary to separate wrongful conduct from `otherwise innocent conduct.'" Carter v. United States, 530 U. S. 255, 269 (2000) (quoting X-Citement Video, 513 U. S., at 72). In some cases, a general requirement that a defendant act knowingly is itself an adequate safeguard. For example, in Carter, we considered whether a conviction under 18 U. S. C. §2113(a), for taking "by force and violence" items of value belonging to or in the care of a bank, requires that a defendant have the intent to steal. 530 U. S., at 261. We held that once the Government proves the defendant forcibly took the money, "the concerns underlying the presumption in favor of scienter are fully satisfied, for a forceful taking—even by a defendant who takes under a good-faith claim of right—falls outside the realm of . . . `otherwise innocent'" conduct. Id., at 269-270. In other instances, however, requiring only that the defendant act knowingly "would fail to protect the innocent actor." Id., at 269. A statute similar to Section 2113(a) that did not require a forcible taking or the intent to steal "would run the risk of punishing seemingly innocent conduct in the case of a defendant who peaceably takes money believing it to be his." Ibid. In such a case, the Court explained, the statute "would need to be read to require . . . that the defendant take the money with `intent to steal or purloin.'" Ibid.

C

Section 875(c), as noted, requires proof that a communication was transmitted and that it contained a threat. The "presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct." X-Citement Video, 513 U. S., at 72 (emphasis added). The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct "wrongful." Here "the crucial element separating legal innocence from wrongful conduct" is the threatening nature of the communication. Id., at 73. The mental state requirement must therefore apply to the fact that the communication contains a threat.

Elonis's conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a "reasonable person" standard is a familiar feature of civil liability in tort law, but is inconsistent with "the conventional requirement for criminal conduct— awareness of some wrongdoing." Staples, 511 U. S., at 606-607 (quoting United States v. Dotterweich, 320 U. S. 277, 281 (1943); emphasis added). Having liability turn on whether a "reasonable person" regards the communication as a threat—regardless of what the defendant thinks— "reduces culpability on the all-important element of the crime to negligence," Jeffries, 692 F. 3d, at 484 (Sutton, J., dubitante), and we "have long been reluctant to infer that a negligence standard was intended in criminal statutes," Rogers v. United States, 422 U. S. 35, 47 (1975) (Marshall, J., concurring) (citing Morissette, 342 U. S. 246). See 1 C. Torcia, Wharton's Criminal Law §27, pp. 171-172 (15th ed. 1993); Cochran v. United States, 157 U. S. 286, 294 (1895) (defendant could face "liability in a civil action for negligence, but he could only be held criminally for an evil intent actually existing in his mind"). Under these principles, "what [Elonis] thinks" does matter. App. 286.

The Government is at pains to characterize its position as something other than a negligence standard, emphasizing that its approach would require proof that a defendant "comprehended [the] contents and context" of the communication. Brief for United States 29. The Government gives two examples of individuals who, in its view, would lack this necessary mental state—a "foreigner, ignorant of the English language," who would not know the meaning of the words at issue, or an individual mailing a sealed envelope without knowing its contents. Ibid. But the fact that the Government would require a defendant to 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. ALI, Model Penal Code §2.02(2)(d) (1985). See id., Comment 4, at 241; 1 LaFave, Substantive Criminal Law §5.4, at 372-373. Courts then ask, however, whether a reasonable person equipped with that knowledge, not the actual defendant, would have recognized the harmfulness of his conduct. That is precisely the Government's position here: Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a 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. Id., at 121. Absolving a defendant of liability because he lacked the knowledge that the materials were legally obscene "would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law." Id., at 123. It was instead enough for liability that "a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials." Ibid.

This holding does not help the Government. In fact, the Court in Hamling approved a state court's conclusion that requiring a defendant to know the character of the material incorporated a "vital element of scienter" so that "not innocent but calculated purveyance of filth . . . is exorcised." Id., at 122 (quoting Mishkin v. New York, 383 U. S. 502, 510 (1966); internal quotation marks omitted). In this case, "calculated purveyance" of a threat would require that Elonis know the threatening nature of his communication. Put simply, the mental state requirement the Court approved in Hamling turns on whether a defendant knew the character of what was sent, not simply its contents and context.

Contrary to the dissent's suggestion, see post, at 4-5, 9-10 (opinion of THOMAS, J.), nothing in Rosen v. United States, 161 U. S. 29 (1896), undermines this reading. The defendant's contention in Rosen was that his indictment for mailing obscene material was invalid because it did not allege that he was aware of the contents of the mailing. Id., at 31-33. That is not at issue here; there is no dispute that Elonis knew the words he communicated. The defendant also argued that he could not be convicted of mailing obscene material if he did not know that the material "could be properly or justly characterized as obscene." Id., at 41. The Court correctly rejected this "ignorance of the law" defense; no such contention is at issue here. See supra, at 10.

* * *

In light of the foregoing, Elonis's conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis's communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state. That understanding "took deep and early root in American soil" and Congress left it intact here: Under Section 875(c), "wrongdoing must be conscious to be criminal." Morissette, 342 U. S., at 252.

There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. See Tr. of Oral Arg. 25, 56. In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. See id., at 8-9. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it. See Department of Treasury, IRS v. FLRA, 494 U. S. 922, 933 (1990) (this Court is "poorly situated" to address an argument the Court of Appeals did not consider, the parties did not brief, and counsel addressed in "only the most cursory fashion at oral argument"). Given our disposition, it is not necessary to consider any First Amendment issues.

Both JUSTICE ALITO and JUSTICE THOMAS complain about our not deciding whether recklessness suffices for liability under Section 875(c). Post, at 1-2 (ALITO, J., concurring in part and dissenting in part); post, at 1-2 (opinion of THOMAS, J.). JUSTICE ALITO contends that each party "argued" this issue, post, at 2, but they did not address it at all until oral argument, and even then only briefly. See Tr. of Oral Arg. at 8, 38-39.

JUSTICE ALITO also suggests that we have not clarified confusion in the lower courts. That is wrong. Our holding makes clear that negligence is not sufficient to support a conviction under Section 875(c), contrary to the view of nine Courts of Appeals. Pet. for Cert. 17. There was and is no circuit conflict over the question JUSTICE ALITO and JUSTICE THOMAS would have us decide—whether recklessness suffices for liability under Section 875(c). No Court of Appeals has even addressed that question. We think that is more than sufficient "justification," post, at 2 (opinion of ALITO, J.), for us to decline to be the first appellate tribunal to do so.

Such prudence is nothing new. See United States v. Bailey, 444 U. S. 394, 407 (1980) (declining to decide whether mental state of recklessness or negligence could suffice for criminal liability under 18 U. S. C. §751, even though a "court may someday confront a case" presenting issue); Ginsberg v. New York, 390 U. S. 629, 644-645 (1968) (rejecting defendant's challenge to obscenity law "makes it unnecessary for us to define further today `what sort of mental element is requisite to a constitutionally permissible prosecution'"); Smith v. California, 361 U. S. 147, 154 (1959) (overturning conviction because lower court did not require any mental element under statute, but noting that "[w]e need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution"); cf. Gulf Oil Co. v. Bernard, 452 U. S. 89, 103-104 (1981) (finding a lower court's order impermissible under the First Amendment but not deciding "what standards are mandated by the First Amendment in this kind of case").

We may be "capable of deciding the recklessness issue," post, at 2 (opinion of ALITO, J.), but following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly.

The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE ALITO, concurring in part and dissenting in part.

In Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court famously proclaimed: "It is emphatically the province and duty of the judicial department to say what the law is." Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.

The Court's disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.

This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.

There is no justification for the Court's refusal to provide an answer. The Court says that "[n]either Elonis nor the Government has briefed or argued" the question whether recklessness is sufficient. Ante, at 16. But in fact both parties addressed that issue. Elonis argued that recklessness is not enough, and the Government argued that it more than suffices. If the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument. In my view, however, we are capable of deciding the recklessness issue, and we should resolve that question now.

I

Section 875(c) provides in relevant part:

"Whoever transmits in interstate or foreign commerce any communication containing . . . any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both."

Thus, conviction under this provision requires proof that: (1) the defendant transmitted something, (2) the thing transmitted was a threat to injure the person of another, and (3) the transmission was in interstate or foreign commerce.

At issue in this case is the mens rea required with respect to the second element—that the thing transmitted was a threat to injure the person of another. This Court has not defined the meaning of the term "threat" in §875(c), but in construing the same term in a related statute, the Court distinguished a "true `threat'" from facetious or hyperbolic remarks. Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam). In my view, the term "threat" in §875(c) can fairly be defined as a statement that is reasonably interpreted as "an expression of an intention to inflict evil, injury, or damage on another." Webster's Third New International Dictionary 2382 (1976). Conviction under §875(c) demands proof that the defendant's transmission was in fact a threat, i.e., that it is reasonable to interpret the transmission as an expression of an intent to harm another. In addition, it must be shown that the defendant was at least reckless as to whether the transmission met that requirement.

Why is recklessness enough? My analysis of the mens rea issue follows the same track as the Court's, as far as it goes. I agree with the Court that we should presume that criminal statutes require some sort of mens rea for conviction. See ante, at 9-13. To be sure, this presumption marks a departure from the way in which we generally interpret statutes. We "ordinarily resist reading words or elements into a statute that do not appear on its face." Bates v. United States, 522 U. S. 23, 29 (1997). But this step is justified by a well-established pattern in our criminal laws. "For several centuries (at least since 1600) the different common law crimes have been so defined as to require, for guilt, that the defendant's acts or omissions be accompanied by one or more of the various types of fault (intention, knowledge, recklessness or—more rarely— negligence)." 1 W. LaFave, Substantive Criminal Law §5.5, p. 381 (2003). Based on these "background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded," we require "some indication of congressional intent, express or implied, . . . to dispense with mens rea as an element of a crime." Staples v. United States, 511 U. S. 600, 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. See ante, at 13-14. As the Court states, "[w]hen interpreting federal criminal statutes that are silent on the required mental state, we read into the statute `only that mens rea which is necessary to separate wrongful conduct from "otherwise innocent conduct."'" Ante, at 12 (quoting Carter v. United States, 530 U. S. 255, 269 (2000)). Whether negligence is morally culpable is an interesting philosophical question, but the answer is at least sufficiently debatable to justify the presumption that a serious offense against the person that lacks any clear common-law counterpart should be presumed to require more.

Once we have passed negligence, however, no further presumptions are defensible. In the hierarchy of mental states that may be required as a condition for criminal liability, the mens rea just above negligence is recklessness. Negligence requires only that the defendant "should [have] be[en] aware of a substantial and unjustifiable risk," ALI, Model Penal Code §2.02(2)(d), p. 226 (1985), while recklessness exists "when a person disregards a risk of harm of which he is aware," Farmer v. Brennan, 511 U. S. 825, 837 (1994); Model Penal Code §2.02(2)(c). And when Congress does not specify a mens rea in a criminal statute, we have no justification for inferring that anything more than recklessness is needed. It is quite 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, 394 U. S., at 707-708. And there are good reasons for that rule: True threats inflict great harm and have little if any social value. A threat may cause serious emotional stress for the person threatened and those who care about that person, and a threat may lead to a violent confrontation. It is true that a communication containing a threat may include other statements that have value and are entitled to protection. But that does not justify constitutional protection for the threat itself.

Elonis argues that the First Amendment protects a threat if the person making the statement does not actually intend to cause harm. In his view, if a threat is made for a "`therapeutic'" purpose, "to `deal with the pain' . . . of a wrenching event," or for "cathartic" reasons, the threat is protected. Brief for Petitioner 52-53. But whether or not the person making a threat intends to cause harm, the damage is the same. And the fact that making a threat may have a therapeutic or cathartic effect for the speaker is not sufficient to justify constitutional protection. Some people may experience a therapeutic or cathartic benefit only if they know that their words will cause harm or only if they actually plan to carry out the threat, but surely the First Amendment does not protect them.

Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. To make this point, his brief includes a lengthy excerpt from the lyrics of a rap song in which a very well-compensated rapper imagines killing his ex-wife and dumping her body in a lake. If this celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. "Taken in context," lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Watts, supra, at 708. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.

The facts of this case illustrate the point. Imagine the effect on Elonis's estranged wife when she read this: "`If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.'" 730 F. 3d 321, 324 (CA3 2013). Or this: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." Ibid. Or this: "Fold up your [protection from abuse order] and put it in your pocket[.] Is it thick enough to stop a bullet?" Id., at 325.

There was evidence that Elonis made sure his wife saw his posts. And she testified that they made her feel "`extremely afraid'" and "`like [she] was being stalked.'" Ibid. Considering the context, who could blame her? Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. See Brief for The National Network to End Domestic Violence et al. as Amici Curiae 4-16. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.

It can be argued that §875(c), if not limited to threats made with the intent to harm, will chill statements that do not qualify as true threats, e.g., statements that may be literally threatening but are plainly not meant to be taken seriously. We have sometimes cautioned that it is necessary to "exten[d] a measure of strategic protection" to otherwise unprotected false statements of fact in order to ensure enough "`breathing space'" for protected speech. Gertz v. Robert Welch, Inc., 418 U. S. 323, 342 (1974) (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)). A similar argument might be made with respect to threats. But we have also held that the law provides adequate breathing space when it requires proof that false statements were made with reckless disregard of their falsity. See New York Times, 376 U. S., at 279-280 (civil liability); Garrison, 379 U. S., at 74-75 (criminal liability). Requiring proof of recklessness is similarly sufficient here.

III

Finally, because the jury instructions in this case did not require proof of recklessness, I would vacate the judgment below and remand for the Court of Appeals to decide in the first instance whether Elonis's conviction could be upheld under a recklessness standard.

We do not lightly overturn criminal convictions, even where it appears that the district court might have erred. To benefit from a favorable ruling on appeal, a defendant must have actually asked for the legal rule the appellate court adopts. Rule 30(d) of the Federal Rules of Criminal Procedure requires a defendant to "inform the court of the specific objection and the grounds for the objection." An objection cannot be vague or open-ended. It must specifically identify the alleged error. And failure to lodge a sufficient objection "precludes appellate review," except for plain error. Rule 30(d); see also 2A C. Wright & P. Henning, Federal Practice and Procedure §484, pp. 433-435 (4th ed. 2009).

At trial, Elonis objected to the District Court's instruction, but he did not argue for recklessness. Instead, he proposed instructions that would have required proof that he acted purposefully or with knowledge that his statements would be received as threats. See App. 19-21. He advanced the same position on appeal and in this Court. See Brief for Petitioner 29 ("Section 875(c) requires proof that the defendant intended the charged statement to be a `threat'" (emphasis in original)); Corrected Brief of Appellant in No. 12-3798 (CA3), p. 14 ("[A] `true threat' has been uttered only if the speaker acted with subjective intent to threaten" (same)). And at oral argument before this Court, he expressly disclaimed any agreement with a recklessness standard—which the Third Circuit remains free to adopt. Tr. of Oral Arg. 8:22-23 ("[W]e would say that recklessness is not justif[ied]"). I would therefore remand for the Third Circuit to determine if Elonis's failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction.

The Third Circuit should also have the opportunity to consider whether the conviction can be upheld on harmlesserror grounds. "We have often applied harmless-error analysis to cases involving improper instructions." Neder v. United States, 527 U. S. 1, 9 (1999); see also, e.g., Pope v. Illinois, 481 U. S. 497, 503-504 (1987) (remanding for harmless-error analysis after holding that jury instruction misstated obscenity standard). And the Third Circuit has previously upheld convictions where erroneous jury instructions proved harmless. See, e.g., United States v. Saybolt, 577 F. 3d 195, 206-207 (2009). It should be given the chance to address that possibility here.

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, 605-606 (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, 39 Stat. 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, 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. 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, 59-60 (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, 572-574 (2009) (refusing to read an intent-to-dischargethe-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, 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. 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, 481-483 (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, 309-310 (1940); see also Chaplinsky 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, 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, 770, 773-775 (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 recklessly 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 mentalstate 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.

Page 156

Page 157

        Robert M. Morgenthau, Dist. Atty., New York County by Seth L. Rosenberg, Asst. Dist. Atty., for the People.

        George Sheinberg, Brooklyn, for defendant.

        E. LEO MILONAS, Judge.

        The defendant was indicted on September 28, 1977 for two counts of murder in the second degree and arson in the third degree after he allegedly intentionally set fire to a couch, thus causing a serious fire on the fifth floor of an abandoned building at 358 East 8th Street in New York County. The New York City Fire Department, in responding to the conflagration, arrived to find the rear portion of the fifth and sixth floors burning. The firemen attempted to bring the situation under control, but making no progress and there being no additional assistance available, they decided to withdraw from the building. At that point, they were suddenly enveloped by a dense smoke, which was later discovered to have arisen from another independent fire that had broken out on the second floor.

        Although this fire was also determined to have originated in arson, there is virtually no evidence implicating the defendant in its responsibility. However, the combination of the thick smoke and the fifth floor fire made evacuation from the premises extremely hazardous, and, in the process, Fireman Martin Celic sustained injuries from which he subsequently died. Accordingly, the defendant was accused of murder in the second degree for having, "Under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person," thereby causing the death of Martin Celic, and with felony murder. The third charge of the indictment, arson, is not at issue for purposes of the instant application.

        It is the defendant's contention that the evidence before the grand jury is insufficient to support the first two counts. He argues that his conduct does not fall within the contemplation of section 125.25(2) of the Penal Law in that there is no proof, first, that he was aware of and then disregarded a substantial and unjustifiable risk that someone might get killed as a result of his action and, secondly, that, in fact, such a danger existed since the building in question was "abandoned." Similarly, felony murder requires a causal link between the underlying crime and the death, a connection which, in the defendant's view, is here lacking.

        There is remarkably little authority on precisely what sort of behavior constitutes "depraved indifference to human life." In the leading case on the subject, People v. Kibbe, 35 N.Y.2d 407, 362 N.Y.S.2d 848, 321 N.E.2d 773 (1974), the Court of Appeals affirmed the conviction of defendants who had abandoned their helplessly intoxicated robbery victim by the side of a dark road in subfreezing temperature, one-half mile from the nearest structure, without shoes or eyeglasses, with his trousers at his ankles, his shirt pulled up and his outer

Page 158

        Clearly, an obscure or merely probable connection between the defendant's conduct and another person's death is not enough to support a charge of homicide. People v. Stewart, supra. In Stewart, the victim had been operated upon for a stab wound in the stomach inflicted by the defendant. Afterwards, the surgeon performed an entirely unrelated hernia procedure on him, and he died. According to the court, "the prosecutor must, at least, prove that the defendant's conduct was an actual cause of death, in the sense that it forged a link in the chain of causes which actually brought about the death . . . ." At p. 697, 389 N.Y.S.2d at p. 807, 358 N.E.2d at p. 491. In this instance, the possibility that death resulted from a factor not attributable to the defendant could not be ruled out beyond a reasonable doubt, since the patient would, in all likelihood, have survived except for the hernia operation.

        Further, in order for an individual to be liable for murder, as opposed to manslaughter, it is not sufficient for him to have simply behaved in a reckless manner; it is essential that, acting recklessly, he manifested a depraved indifference to human life. People v. Poplis, 30 N.Y.2d 85, 330 N.Y.S.2d 365, 281 N.E.2d 167 (1972). In Poplis, the court decided that the defendant had been properly convicted of murder when he repeatedly administered physical beatings to his wife's three and one-half year old child. See also People v. France, 57 A.D.2d 432, 394 N.Y.S.2d 891 (1st Dept., 1977), in which the court declared that "the act must be 'perpetrated with a full consciousness of the probable consequences' . . . and certainly be one which would support the observation that 'the imminently dangerous act, the extreme depravity of mind, and the regardlessness of human life properly place the crime upon the same level as the taking of life by premeditated design' . . . ." At p. 434, 394 N.Y.S.2d at p. 893.

        It is generally difficult to distinguish between conduct which is merely reckless, on the one hand, and conduct when it is reckless under circumstances evincing a depraved indifference to human life, on the other. However, having carefully examined the facts of the instant case, this court is satisfied that the evidence before the grand jury is sufficient to support the crimes charged against the defendant.

        In his statement to an assistant district attorney, the defendant admitted having entered the premises at 358 East 8th Street and, at the rear of the fifth floor, having deliberately ignited the couch that started the fire. He also asserted that on the first floor he noticed three or four persons whom he believed to be "winos," and he passed a number of other people as he left. His purpose in setting the fire was, he claimed, to destroy the building so that "winos" and "junkies," who he disliked, could no longer utilize it. Therefore, the building, while abandoned, was not necessarily unoccupied, a situation of which the defendant was apparently quite aware. As for the building itself, it was a wood frame tenement house in the midst of a crowded neighborhood. A major conflagration and the fire which the defendant began was a severe one could easily have engulfed the surrounding area with considerable loss of life. The fire did, in fact, spread to a nearby structure, which was occupied. Under those circumstances, it is hardly credible that the defendant's action was not of such a magnitude as to demonstrate a wanton and depraved indifference to human life. Fire is indeed, as the People argue, non-selective and uncontrollable in its destructiveness.

Page 159

        Moreover, the defendant's conduct need not be the sole and exclusive factor in the victim's death. In the standard established by People v. Kibbe, supra, and People v. Stewart, supra, an individual is criminally liable if his conduct was a sufficiently direct cause of the death, and the ultimate harm is something which should have been foreseen as being reasonably related to his acts. It is irrelevant that, in this instance the fire which had erupted on the second floor intervened, thus contributing to the conditions that culminated in the death of Fireman Celic. In Kibbe, the victim was killed when he was struck by a truck. This did not relieve the defendants in that case from criminal responsibility for his murder, as it does not absolve the defendant here. Certainly, it was foreseeable that firemen would respond to the situation, thus exposing them, along with the persons already present in the vicinity, to a life-threatening danger. The fire set by the defendant was an indispensable link in the chain of events that resulted in the death. It continued to burn out of control, greatly adding to the problem of evacuating the building by blocking off one of the access routes. At the very least, the defendant's act, as was the case in Kibbe, placed the deceased in a position where he was particularly vulnerable to the separate and independent force, in this instance, the fire on the second floor.

        Consequently, the defendant's motion to dismiss the first count of the indictment is denied.

        The defendant's claim that there is no evidence showing a causal connection between the arson and the concomitant death sufficient to sustain the second count is also rejected for the reasons already set forth. Thus, the motion to dismiss the felony murder charge is denied as well.

[455] Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.

Edward A. Schultz, with him H. Turner Frost and Seif, Schultz & Frost, for appellant.

Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.

OPINION BY HIRT, J., January 14, 1955:

One indictment (Bill 230), before us in the present appeals, charged that the defendant on May 4, 1953 "devising, contriving and intending the morals and [456] manners of the good citizens of this Commonwealth then and there being, to debauch and corrupt, and further devising and intending to harass, embarrass and villify divers citizens of this Commonwealth, and particularly one Louise Zivkovich and the members of the family of her the said Louise Zivkovich . . . unlawfully, wickedly and maliciously did then and there on the said days and dates aforesaid, make numerous telephone calls to the dwelling house of the said Louise Zivkovich at all times of the day and night, in which said telephone calls and conversations resulting therefrom the said Michael Mochan did wickedly and maliciously refer to the said Louise Zivkovich as a lewd, immoral and lascivious woman of an indecent and lewd character, and other scurrilous approbrious, filthy, disgusting and indecent language and talk and did then and there use in said telephone calls and conversations resulting therefrom, not only with the said Louise Zivkovich as aforesaid but with other members of the family of the said Louise Zivkovich then and there residing and then and there answering said telephone calls aforesaid intending as aforesaid to blacken the character and reputation of the said Louise Zivkovich and to infer that the said Louise Zivkovich was a woman of ill repute and ill fame, and intending as aforesaid to harass, embarrass and villify the said Louise Zivkovich and other members of her household as aforesaid, to the great damage, injury and oppression of the said Louise Zivkovich and other good citizens of this Commonwealth to the evil example of all other in like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania." A second indictment (Bill 231), in the same language, charged a like offense committed by defendant on another date. Defendant was tried before a judge without a jury and was convicted on both charges and was [457] sentenced. He has appealed from the refusal by the court en banc of his motions in arrest of judgment, on the ground advanced by him that the conduct charged in the indictments, concededly not a criminal offense in this State by any statute, does not constitute a misdemeanor at common law. In a number of States and especially in the common law State of Pennsylvania the common law of England, as to crimes, is in force except in so far as it has been abrogated by statute. 11 Am. Jur., Common Law, § 4; 22 C.J.S., Criminal Law, § 19. The indictments in these cases by their language, clearly purported to charge a common law crime not included in our Penal Code or elsewhere in our statutory law.

It is established by the testimony that the defendant over a period of more than one month early in 1953, on numerous occasions and on the specific dates laid in the indictments, telephoned one Louise Zivkovich, a stranger to him and a married woman of the highest character and repute. He called as often as three times each week and at any hour of the day or night. His language on these calls was obscene, lewd and filthy. He not only suggested intercourse with her but talked of sodomy as well, in the loathsome language of that criminal act, on a number of occasions. The calls were coming in from a four-party line. Through cooperation with the telephone company, the defendant was finally located and was arrested by the police at the telephone after the completion of his last call. After his arrest bearing upon the question of his identification as the one who made the calls, Mrs. Zivkovich recognized his voice, in a telephone conversation with him which was set up by the police.

It is of little importance that there is no precedent in our reports which decides the precise question here involved. The test is not whether precedents can be [458] found in the books but whether the alleged crimes could have been prosecuted and the offenders punished under the common law. Commonwealth v. McHale, 97 Pa. 397, 408. In Commonwealth v. Miller, 94 Pa. Superior Ct. 499, 507, the controlling principles are thus stated: "The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality, or obstruct, or pervert public justice, or the administration of government: 16 Corpus Juris, Sec. 23, page 65, citing Republica v. Teischer, 1 Dallas 335; Com. v. Sharpless, 2 S. & R. 91, and Barker v. Com., 19 Pa. 412." Cf. Com. of Penna. v. DeGrange, 97 Pa. Superior Ct. 181, in which it is said: "`Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law': Russell on Crimes and Misdemeanors, 8th Ed., Vol. 1, p. 10; 4 Blackstone's Commentaries 65, note." Any act is indictable at common law which from its nature scandalously affects the morals or health of the community. 1 Wharton Criminal Law, 12 Ed., § 23. Thus in Barker et al. v. Commonwealth, 19 Pa. 412, a common law conviction based upon open obscenity was affirmed. Cf. Sadler, Criminal & Penal Proc., § 281. And in Commonwealth v. Glenny, 54 D. & C. 633, in a well considered opinion it was held that an indictment charging that the defendant took indecent liberties tending to debauch the morals of a male victim adequately set forth a common law offense. And as early as Updegraph v. Commonwealth, 11 S. & R. 393, it was held that Christianity is a part of the common law and maliciously to vilify the Christian religion is an indictable offense.

[459] To endeavor merely to persuade a married woman to commit adultery is not indictable. Smith v. Commonwealth, 54 Pa. 209. The present defendant's criminal intent was evidenced by a number of overt acts beyond the mere oral solicitation of adultery. The vile and disgusting suggestions of sodomy alone and the otherwise persistent lewd, immoral and filthy language used by the defendant, take these cases out of the principle of the Smith case. Moreover potentially at least, defendant's acts injuriously affected public morality. The operator or any one on defendant's four-party telephone line could have listened in on the conversations, and at least two other persons in Mrs. Zivkovich's household heard some of defendant's immoral and obscene language over the telephone.

The name "Immoral Practices and Conduct" was ascribed to the offense and was endorsed on the indictments by the District Attorney. Whether the endorsement appropriately or adequately names the offense is unimportant (Com. of Penna. v. DeGrange, supra, p. 185); the factual charges in the body of the indictments identify the offense as a common law misdemeanor and the testimony established the guilt of the defendant.

Judgments and sentences affirmed.

DISSENTING OPINION BY WOODSIDE, J.:

Not unmindful of the reprehensible conduct of the appellant, I nevertheless cannot agree with the majority that what he did was a crime punishable under the laws of this Commonwealth.

The majority is declaring something to be a crime which was never before known to be a crime in this Commonwealth. They have done this by the application [460] of such general principles as "it is a crime to do anything which injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer;" and "whatever openly outrages decency and is injurious to public morals is a misdemeanor."

Not only have they declared it to be a crime to do an act "injuriously affecting public morality," but they have declared it to be a crime to do any act which has a "potentially" injurious effect on public morality.

Under the division of powers in our constitution it is for the legislature to determine what "injures or tends to injure the public."

One of the most important functions of a legislature is to determine what acts "require the state to interfere and punish the wrongdoer." There is no reason for the legislature to enact any criminal laws if the courts delegate to themselves the power to apply such general principles as are here applied to whatever conduct may seem to the courts to be injurious to the public.

There is no doubt that the common law is a part of the law of this Commonwealth, and we punish many acts under the common law. But after nearly two hundred years of constitutional government in which the legislature and not the courts have been charged by the people with the responsibility of deciding which acts do and which do not injure the public to the extent which requires punishment, it seems to me we are making an unwarranted invasion of the legislative field when we arrogate that responsibility to ourselves by declaring now, for the first time, that certain acts are a crime.

When the legislature invades either the judicial or the executive fields, or the executive invades either the judicial or legislative fields, the courts stand ready to [461] stop them. But in matters of this type there is nothing to prevent our invasion of the legislative field except our own self restraint. There are many examples of how carefully the courts, with admirable self restraint, have fenced themselves in so they would not romp through the fields of the other branches of government. This case is not such an example.

Until the legislature says that what the defendant did is a crime, I think the courts should not declare it to be such.

I would therefore reverse the lower court and discharge the appellant.

GUNTHER, J. joins in this dissent.