575 U.S. _, 135 S. Ct. 2001 (2015)
Anthony Douglas Elonis was an active user of the social networking website Facebook.1 In May 2010, Elonis’s wife of nearly seven years left him, taking with her their two young children.2 Elonis began listening to more violent music and posting self-styled rap lyrics inspired by the music under the pseudonym Tone Dougie.3
The lyrics Elonis posted included graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement.4 This material was often interspersed with disclaimers that the lyrics were fictitious with no intentional resemblance to real persons.5 Elonis posted a photograph of himself holding a toy knife against a co-worker’s neck with the caption I wish, after which the chief of park security fired him.6
Elonis posted an adaptation of a satirical sketch in which he substituted his wife for the President.7 The posting described firing a mortar launcher at her house from the cornfield behind it.8 After viewing some of Elonis’s posts, his wife felt extremely afraid for her life and obtained a three-year protection-from-abuse order against him.9
Elonis posted about the order and referenced having enough explosives to take care of the State Police and the Sheriff’s Department.10 Elonis posted an entry stating he had enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined.11 After park security informed the FBI, agents monitored Elonis’s Facebook activity and visited his house.12 Elonis then posted Little Agent Lady describing slitting an FBI agent’s throat and detonating a bomb.13
A grand jury indicted Elonis on five counts of violating 18 U.S.C. §875(c).14 At trial Elonis requested a jury instruction that the government must prove that he intended to communicate a true threat.15 The District Court instead instructed the jury that a statement is a true threat when a defendant intentionally makes a statement in a context wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of an intention to inflict bodily injury.16 The jury convicted Elonis on four of the five counts.17 The Third Circuit affirmed. The Supreme Court granted certiorari.
Whether 18 U.S.C. §875(c) requires proof that the defendant intended the communication to contain a threat?18
Section 875(c) requires proof that the defendant transmitted a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.19 The presumption in favor of a scienter requirement applies to each statutory element that criminalizes otherwise innocent conduct.20 The threatening nature of the communication is the crucial element separating legal innocence from wrongful conduct.21
Yes. The Court applied the rule from Morissette v. United States that mere omission of criminal intent from a statute does not dispense with it.22 The Court also applied the rule from X-Citement Video that the mental state requirement must apply to the fact that the communication contains a threat.23
This rule was applied to the established facts that Elonis posted the lyrics under a pseudonym with disclaimers they were fictitious and therapeutic.24 His wife and co-workers viewed them as threats leading to his firing and a protection order.25 The conviction rested solely on the reasonable person standard without any finding that Elonis had purpose or knowledge regarding the threatening nature.26
Section 875(c) requires proof that the defendant acted with purpose or knowledge that the communication contained a threat.27
Related opinions on this issue
Justice Alito agreed that negligence is insufficient but argued that recklessness regarding whether the communication would be interpreted as a true threat is enough to support conviction under Section 875(c).28 Once the presumption against negligence is satisfied no further presumption is defensible.29 Recklessness is morally culpable conduct that separates wrongful from innocent acts.30
He would have remanded for the Third Circuit to consider whether the conviction could stand under a recklessness standard or on harmless error grounds given that Elonis had not requested a recklessness instruction at trial.31 In his view the Court should have resolved the recklessness question to provide guidance to lower courts and avoid leaving the law unsettled.32
Justice Thomas dissented arguing that the statute requires only general intent which is satisfied if the defendant knows he transmitted a communication containing words that a reasonable recipient would understand as a threat.33 The majority's rejection of general intent is irreconcilable with precedents such as Rosen v. United States and Hamling v. United States that applied general intent to similar speech offenses.34 He would have affirmed the judgment below.35
Thomas emphasized that historical practice and the background rule of the common law supported requiring no more than general intent for threat prosecutions under the statute.36
Whether a jury instruction based solely on how a reasonable person would interpret the communication as a threat is sufficient to support a conviction under Section 875(c)?37
A jury instruction that permits conviction when a reasonable person would foresee that the statement would be interpreted as a threat is not sufficient. It imposes only a negligence standard. This is inconsistent with the conventional requirement for criminal conduct of awareness of some wrongdoing.
No. The Court held that the instruction given at trial which told the jury that Elonis could be convicted if a reasonable person would foresee his statements as threats allowed conviction based solely on negligence and therefore could not support the conviction.38
This rule was applied to the established facts that the District Court rejected Elonis's requested instruction requiring intent to communicate a true threat and instead used the reasonable person standard leading to conviction on four counts without any finding that Elonis himself was aware of the threatening nature of his posts.39
A jury instruction based solely on a reasonable person standard is not sufficient to support a conviction under Section 875(c).40
Whether the First Amendment requires proof that the defendant was aware of the threatening nature of the communication?41
Because Section 875(c) requires proof of purpose or knowledge with respect to the threatening nature of the communication it is unnecessary to consider whether the First Amendment independently imposes such a requirement.42
No. The Court concluded that the statutory mental state requirement resolved the case and therefore declined to address any First Amendment issues raised by Elonis.43
This determination was applied to the established facts that Elonis interspersed his posts with statements that he was exercising his First Amendment rights and that the lyrics were fictitious yet the conviction was reversed on statutory grounds alone.44
The Court did not reach the First Amendment question because the statute requires the necessary mental state.45
Related opinions on this issue
Justice Alito separately addressed the First Amendment and concluded that interpreting Section 875(c) to require recklessness would not violate the First Amendment because true threats are unprotected.46 Requiring proof of recklessness provides adequate breathing space for protected speech while preventing the chilling of statements that are not true threats.47 He would have vacated the judgment and remanded for further proceedings under a recklessness standard.48
Alito stressed that context matters when evaluating whether artistic expression crosses into unprotected threats and that social media posts directed at specific victims are more likely to be taken seriously than song lyrics.49