Elonis v. United States, No. 13-983 (U.S. Jun. 1, 2013)
Abstract: The U.S. Supreme Court, in a 7-2 split, held the Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, was not sufficient to support a conviction under Section 875(c). Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of “awareness of some wrongdoing.” Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.
Chief Justice Roberts, joined by Justices Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, issued the Court’s opinion. Justice Alito filed an opinion concurring in part and dissenting in part. Justice Thomas filed a dissenting opinion.
The Roberts led majority pointed out that the generally “a guilty mind is a necessary element in the indictment and proof of every crime.” As a result, it found “criminal statutes are generally interpreted to include broadly applicable scienter requirements, even where the statute . . . does not contain them.”
The majority concluded: “Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of ‘awareness of some wrongdoing,’”
Facts/Issues: The issue in this case involves what standard to apply to determine whether an individual’s online postings constitute a “true threat” exception to the First Amendment’s free speech protection. The petitioner, Anthony Elonis, was charged under federal law with transmitting in interstate commerce communications containing a threat to injure the person of another in violation of 18 U.S.C. § 875(c).
The grand jury subsequently indicted him on five counts of making threatening communications. Elonis filed a motion to dismiss the indictment against him, contending that, in Virginia v. Black, 538 U.S. 342 (2003), the Supreme Court held “that a subjective intent to threaten was required under the true threat exception to the First Amendment and that his statements were not threats but were protected speech.”
The federal district court denied his motion on the ground that even if the subjective intent standard applied, Elonis’ intent and the circumstances showing whether or not the statements were “true threats” was a question of fact for a jury. After trial, a jury convicted Elonis on four of the five counts. He filed several post-trial motions, which the court denied.
In denying his motions, the court stated that the objective intent standard conformed with precedent of the U.S. Court of Appeals for the Third Circuit. The district court also concluded that the evidence presented at trial supported the jury’s finding that the statements in three of the counts were true threats. Elonis appealed his conviction to the Third Circuit.
A three-judge Third Circuit panel upheld Elonis’ conviction. It rejected his contention that because the Supreme Court held that Virginia’s prima facie evidence provision in its cross-burning statute violated due process, the Court had established a subjective intent standard as it relates to the true threat exception to free speech protection. It stated that the U.S. Supreme Court’s reasoning in Black, as related to the prima facie provision, addressed the constitutionality of that provision in regard to the defendant’s due process rights to not put on a defense, rather than the issue in the present case which involved whether a reasonable person would foresee Elonis’ statements as conveying threats.
The panel also noted that the majority of federal circuits that have addressed the issue have determined that Black does not require a subjective intent to threaten. The court said “We agree with the Fourth Circuit that Black does not clearly overturn the objective test the majority of circuits applied to § 875(c). Black does not say that the true threat exception requires a subjective intent to threaten. Furthermore, our standard does require a finding of intent to communicate.”
Ruling/Rationale: The U.S. Supreme Court, 7-2, reversed and remanded the Third Circuit panel’s decision upholding Elonis’ conviction under § 875(c). The majority began its analysis by pointing out that “neither Elonis nor the Government has identified any indication of a particular mental state requirement in the text of Section 875(c).” It emphasized that the absence in a statute of a required mental state does not mean it does not exist.
The majority pointed to the “general rule” that a guilty mind is “a necessary element in the indictment and proof of every crime.” As a result, it found courts “interpret criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” According to the majority, “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.”
The majority’s reading of § 875(c) revealed that “the mental state requirement must … apply to the fact that the communication contains a threat.” However, it found that Elonis’s conviction “was premised solely on how his posts would be understood by a reasonable person.” This led the majority to concluded: “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.”
The majority rejected the government’s argument that it was not suggesting a negligence standard. The majority stated:
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.
It rejected the reasonable person standard as a basis for criminal guilt under § 875(c) on the ground that “[f]ederal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”
While acknowledging the question of whether a finding of recklessness would be sufficient for guilt, the majority declined to address the question because “[n]either Elonis nor the Government has briefed or argued that point.”
Justice Alito, concurring in part and dissenting in part in the opinion, took issue with majority’s failure to determine the type of intent required to satisfy § 875(c), other than to rule out negligence as an acceptable standard. He stated, “There is no justification for the Court’s refusal to provide an answer,” adding,”[i]f the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument.”
While agreeing “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,” Alito contended, “[W]hen Congress does not specify a mens rea in a criminal statute, we have no justification for inferring that anything more than recklessness is needed.” He, therefore, concluded: “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.”
Justice Thomas’ dissent expressed dissatisfaction with the majority’ failure to resolve the conflict between Elonis argument that § 875(c) and the First Amendment require proof of an intent to threaten and the federal government’s advocacy of a general-intent approach. He concluded: “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.”
According to Thomas, “Our default rule in favor of general intent applies with full force to criminal statutes addressing speech.” He also said, “At a minimum, there is no historical practice requiring more than general intent when a statute regulates speech.”
Thomas also argued that “[d]emanding evidence only of general intent also corresponds to §875(c)’s statutory backdrop.” Faulting the majority for rejecting these “ordinary backdrop principles, he insisted the majority “casts my application of general intent as a negligence standard disfavored in the criminal law.”
Justice Thomas found the majority’s reasoning flawed, stating:
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.
However, Thomas found a ray of legal sunshine in the fact that the majority had at least refrained “from requiring an intent to threaten for §875(c) convictions, as Elonis asks us to do.” He then addressed whether Elonis’ posts were entitled to First Amendment protection.
Specifically, Justice Thomas explored whether Elonis’ posts fell within the true threat exception to the First Amendment. According to Thomas, “Elonis claims that only intentional threats fall within this particular historical exception.”
After reviewing the history of true threat jurisprudence, Justice Thomas found “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.” He found Elonis’ counter historical analysis unpersuasive. Thomas added, “The Court’s fractured opinion in Black likewise says little about whether an intent-to-threaten requirement is constitutionally mandated here.”
Thomas also rejected Elonis’ view because: “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.”
Elonis v. United States, No. 13-983 (U.S. Jun. 1, 2013)
[Editor’s Note: In December 2014, Legal Clips summarized ScotusBlog’s commentary on U.S. Supreme Court’s oral argument in Elonis v. United States. Commenting on the argument, SCOTUSblog said: “At issue in the case is whether a Pennsylvania man’s conviction for making threats on Facebook should stand when he claims he was just ‘venting’ about his personal problems and did not actually mean to threaten his ex-wife and an FBI agent.” It also noted that it did not appear that either side had a clear path to “victory.” It pointed out that the federal government argued that the test should be an objective one that looks at whether an average person (in legal parlance, a “reasonable person”) would interpret the statement as reflecting a serious intent to harm someone. While Elonis argued that the test should be a subjective one: did he personally intend to threaten anyone? ]