Elonis v. United States

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 2012 - 2013.

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 *2019called "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, 89 S.Ct. 1399, 22 L.Ed.2d 664 (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 reasonablerecipient familiar with the context of the communication," United States v. Darby,37 F.3d 1059, 1066 (C.A.4 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, 85 S.Ct. 453, 13 L.Ed.2d 471 (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 (C.A.6 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 rearequirement. See ante,at 2008 - 2009. But because we read criminal statutes "in light of the background rules of the common law, in which the requirement of some mens reafor a crime is firmly embedded," we require "some indication of congressional intent, express or implied, ... to dispense with mens reaas an element of a crime." Staples v. United States,511 U.S. 600, 605-606, 114 S.Ct. 1793, 128 L.Ed.2d 608 (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 reusof the crime." Carter v. United States,530 U.S. 255, 268, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000).

Under this "conventional mens reaelement," "the defendant [must] know the facts that make his conduct illegal," Staples, supra,at 605, 114 S.Ct. 1793, but he need not know thatthose 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, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998)(internal quotation marks omitted). For instance, in Posters 'N' Things, Ltd. v. United States,511 U.S. 513, 114 S.Ct. 1747, 128 L.Ed.2d 539 (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, 114 S.Ct. 1747(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, 114 S.Ct. 1747.

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 *2020under 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, 16 S.Ct. 434, 40 L.Ed. 606 (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, 16 S.Ct. 434. 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, 16 S.Ct. 434.

This Court reaffirmed Rosen's holding in Hamling v. United States,418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), when it considered a challenge to convictions under the successor federal statute, see id.,at 98, n. 8, 94 S.Ct. 2887(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, 94 S.Ct. 2887(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, 94 S.Ct. 2887(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, 94 S.Ct. 2887.

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 (C.A.7 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 *2021argument 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, 114 S.Ct. 1793, 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 reusof 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, 16 S.Ct. 434-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 reaelement" of general intent, Staples, supra,at 605, 114 S.Ct. 1793; I *2022would 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 2010 - 2013. 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 factbeyond his awareness. See, e.g.,United States v. X-Citement Video, Inc.,513 U.S. 64, 73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994)(knowledge of age of persons depicted in explicit materials); Staples, supra,at 614-615, 114 S.Ct. 1793(knowledge of firing capability of weapon); Morissette v. United States,342 U.S. 246, 270-271, 72 S.Ct. 240, 96 L.Ed. 288 (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 legaldefinition 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 2012 (quoting Hamling,418 U.S., at 122, 94 S.Ct. 2887(in turn quoting Mishkin v. New York,383 U.S. 502, 510, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966))). According to the Court, the mental state approved in Hamlingthus "turns on whether a defendant knew the characterof what was sent, not simply its contents and context." Ante,at 2012. It is unclear what the Court means by its distinction between "character" and "contents and context." "Character" cannot mean legalobscenity, as Hamlingrejected the argument that a defendant must have "awareness of the obscene character of the material." 418 U.S., at 120, 94 S.Ct. 2887(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, 94 S.Ct. 2887; see also Posters 'N' Things,511 U.S., at 524-525, 114 S.Ct. 1747(characterizing Hamlingas 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 Rosenis even less persuasive. To shore up its position, *2023it asserts that the critical portion of Rosenrejected an " 'ignorance of the law' defense," and claims that "no such contention is at issue here." Ante,at 2012. 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, 16 S.Ct. 434. 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 Rosenand 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, 118 S.Ct. 285, 139 L.Ed.2d 215 (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 2008 - 2009. The absence of such a requirement is significant, as Congress knows how to require a heightened mens reain 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 2006 - 2007, 2012 - 2013 (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, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997)(internal quotation marks omitted), and ordinary background principles of criminal law do not support *2024rewriting § 875(c)to include an intent-to-threaten requirement. We have not altered our traditional approach to mens reafor other constitutional provisions. See, e.g., Dean v. United States,556 U.S. 568, 572-574, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009)(refusing to read an intent-to-discharge-the-firearm element into a mandatory minimum provision concerning the discharge of a firearm during a particular crime). The First Amendment should be treated no differently.

II

In light of my conclusion that Elonis was properly convicted under the requirements of § 875(c), I must address his argument that his threatening posts were nevertheless protected by the First Amendment.

A

Elonis does not contend that threats are constitutionally protected speech, nor could he: "From 1791 to the present, ... our society ... has permitted restrictions upon the content of speech in a few limited areas," true threats being one of them. R.A.V. v. St. Paul,505 U.S. 377, 382-383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); see id.,at 388,