Elonis v. United States , 135 S. Ct. 2001 ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ELONIS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 13–983. Argued December 1, 2014—Decided June 1, 2015
After his wife left him, petitioner Anthony Douglas Elonis, under the
pseudonym “Tone Dougie,” used the social networking Web site
Facebook to post self-styled rap lyrics containing graphically violent
language and imagery concerning his wife, co-workers, a kindergar-
ten class, and state and federal law enforcement. These posts were
often interspersed with disclaimers that the lyrics were “fictitious”
and not intended to depict real persons, and with statements that
Elonis was exercising his First Amendment rights. Many who knew
him saw his posts as threatening, however, including his boss, who
fired him for threatening co-workers, and his wife, who sought and
was granted a state court protection-from-abuse order against him.
When Elonis’s former employer informed the Federal Bureau of
Investigation of the posts, the agency began monitoring Elonis’s Face-
book activity and eventually arrested him. He was charged with five
counts of violating 18 U. S. C. §875(c), which makes it a federal crime
to transmit in interstate commerce “any communication containing
any threat . . . to injure the person of another.” At trial, Elonis re-
quested a jury instruction that the Government was required to
prove that he intended to communicate a “true threat.” Instead, the
District Court told the jury that Elonis could be found guilty if a rea-
sonable person would foresee that his statements would be interpret-
ed as a threat. Elonis was convicted on four of the five counts and
renewed his jury instruction challenge on appeal. The Third Circuit
affirmed, holding that Section 875(c) requires only the intent to
communicate words that the defendant understands, and that a rea-
sonable person would view as a threat.
Held: The Third Circuit’s instruction, requiring only negligence with
respect to the communication of a threat, is not sufficient to support a
2 ELONIS v. UNITED STATES
Syllabus
conviction under Section 875(c). Pp. 7–17.
(a) Section 875(c) does not indicate whether the defendant must in-
tend that the communication contain a threat, and the parties can
show no indication of a particular mental state requirement in the
statute’s text. Elonis claims that the word “threat,” by definition,
conveys the intent to inflict harm. But common definitions of
“threat” speak to what the statement conveys—not to the author’s
mental state. The Government argues that the express “intent to ex-
tort” requirements in neighboring Sections 875(b) and (d) should pre-
clude courts from implying an unexpressed “intent to threaten” re-
quirement in Section 875(c). The most that can be concluded from
such a comparison, however, is that Congress did not mean to confine
Section 875(c) to crimes of extortion, not that it meant to exclude a
mental state requirement. Pp. 7–9.
(b) The Court does not regard “mere omission from a criminal en-
actment of any mention of criminal intent” as dispensing with such a
requirement. Morissette v. United States, 342 U. S. 246, 250. This
rule of construction reflects the basic principle that “wrongdoing
must be conscious to be criminal,” and that a defendant must be
“blameworthy in mind” before he can be found guilty. Id., at 252.
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. Thus, criminal statutes are generally interpreted “to
include broadly applicable scienter requirements, even where the
statute . . . does not contain them.” United States v. X-Citement Vid-
eo, Inc., 513 U. S. 64, 70. This does not mean that a defendant must
know that his conduct is illegal, but a defendant must have
knowledge of “the facts that make his conduct fit the definition of the
offense.” Staples v. United States, 511 U. S. 600, 608, n. 3. Federal
criminal statutes that are silent on the required mental state should
be read to include “only that mens rea which is necessary to separate”
wrongful from innocent conduct. Carter v. United States, 530 U. S.
255, 269. In some cases, a general requirement that a defendant act
knowingly is sufficient, but where such a requirement “would fail to
protect the innocent actor,” the statute “would need to be read to re-
quire . . . specific intent.” Ibid. Pp. 9–13.
(c) The “presumption in favor of a scienter requirement should ap-
ply to each of the statutory elements that criminalize otherwise inno-
cent conduct.” X-Citement Video, 513 U. S., at 72. In the context of
Section 875(c), that requires proof that a communication was trans-
mitted and that it contained a threat. And because “the crucial ele-
ment separating legal innocence from wrongful conduct,” id., at 73, is
the threatening nature of the communication, the mental state re-
quirement must apply to the fact that the communication contains a
Cite as: 575 U. S. ____ (2015) 3
Syllabus
threat. 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 con-
duct requirement of “awareness of some wrongdoing,” Staples, 511
U. S., at 606–607. This Court “ha[s] long been reluctant to infer that
a negligence standard was intended in criminal statutes.” Rogers v.
United States, 422 U. S. 35, 47 (Marshall, J., concurring). And the
Government fails to show that the instructions in this case required
more than a mental state of negligence. Hamling v. United States,
418 U. S. 87, distinguished. Section 875(c)’s mental state require-
ment is satisfied if the defendant transmits a communication for the
purpose of issuing a threat or with knowledge that the communica-
tion will be viewed as a threat. The Court declines to address wheth-
er a mental state of recklessness would also suffice. Given the dispo-
sition here, it is unnecessary to consider any First Amendment
issues. Pp. 13–17.
730 F. 3d. 321, reversed and remanded.
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.
Cite as: 575 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–983
_________________
ANTHONY DOUGLAS ELONIS, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 1, 2015]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Federal law makes it a crime to transmit in interstate
commerce “any communication containing any threat . . .
to injure the person of another.” 18 U. S. C. §875(c).
Petitioner was convicted of violating this provision under
instructions that required the jury to find that he commu-
nicated 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 noti-
fied 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 vio-
2 ELONIS v. UNITED STATES
Opinion of the Court
lent 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 “ficti-
tious,” 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.
Cite as: 575 U. S. ____ (2015) 3
Opinion of the Court
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 satiri-
cal 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.
4 ELONIS v. UNITED STATES
Opinion of the Court
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 lim-
its. 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 “ex-
tremely 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 De-
partment.” 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
Cite as: 575 U. S. ____ (2015) 5
Opinion of the Court
to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a Kinder-
garten 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 Face-
book 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 Face-
book 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
6 ELONIS v. UNITED STATES
Opinion of the Court
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 in-
jure 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 indict-
ment 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 in-
tended 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 govern-
ment 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
Cite as: 575 U. S. ____ (2015) 7
Opinion of the Court
instead informed the jury that
“A statement is a true threat when a defendant inten-
tionally 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 state-
ment 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 com-
8 ELONIS v. UNITED STATES
Opinion of the Court
munication 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 con-
tain 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 exam-
ple, 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, Sec-
tions 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 ex-
tort” requirements in Sections 875(b) and (d) should pre-
Cite as: 575 U. S. ____ (2015) 9
Opinion of the Court
clude 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 iden-
tify what mental state, if any, a defendant must have to be
convicted.
In sum, neither Elonis nor the Government has identi-
fied any indication of a particular mental state require-
ment 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
10 ELONIS v. UNITED STATES
Opinion of the Court
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[ ] crim-
inal statutes to include broadly applicable scienter re-
quirements, 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” typi-
cally 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. Dur-
ing 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
Cite as: 575 U. S. ____ (2015) 11
Opinion of the Court
considered a statute making it a crime to knowingly pos-
sess or use food stamps in an unauthorized manner. 471
U. S. 419, 420 (1985). The Government’s argument, simi-
lar 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 crimi-
nalized “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 cus-
tomers. Without a mental state requirement in the stat-
ute, 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 sell-
ing 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 de-
fendant’s culpable state of mind.
And again, in X-Citement Video, we considered a statute
criminalizing the distribution of visual depictions of mi-
12 ELONIS v. UNITED STATES
Opinion of the Court
nors 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 prohib-
ited 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 mi-
nors, 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 stat-
ute “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 de-
fendant 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
Cite as: 575 U. S. ____ (2015) 13
Opinion of the Court
statute “would need to be read to require . . . that the
defendant take the money with ‘intent to steal or pur-
loin.’ ” Ibid.C
Section 875(c), as noted, requires proof that a communi-
cation 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 crimi-
nalize 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 some-
thing is not what makes the conduct “wrongful.” Here
“the crucial element separating legal innocence from
wrongful conduct” is the threatening nature of the com-
munication. 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
14 ELONIS v. UNITED STATES
Opinion of the Court
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 princi-
ples, “what [Elonis] thinks” does matter. App. 286.
The Government is at pains to characterize its position
as something other than a negligence standard, emphasiz-
ing that its approach would require proof that a defendant
“comprehended [the] contents and context” of the commu-
nication. 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 actu-
ally know the words of and circumstances surrounding a
communication does not amount to a rejection of negli-
gence. 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 reason-
able 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 indi-
viduals could be convicted of mailing obscene material
only if they knew the “legal status of the materials” dis-
tributed. Id., at 121. Absolving a defendant of liability
Cite as: 575 U. S. ____ (2015) 15
Opinion of the Court
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 mate-
rial incorporated a “vital element of scienter” so that “not
innocent but calculated purveyance of filth . . . is exor-
cised.” 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 re-
quire that Elonis know the threatening nature of his
communication. Put simply, the mental state requirement
the Court approved in Hamling turns on whether a de-
fendant 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 de-
fendant 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.
16 ELONIS v. UNITED STATES
Opinion of the Court
* * *
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 ques-
tion 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 argu-
ment 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
Cite as: 575 U. S. ____ (2015) 17
Opinion of the Court
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 reck-
lessness 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 appel-
late 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.
Cite as: 575 U. S. ____ (2015) 1
Opinion of ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–983
_________________
ANTHONY DOUGLAS ELONIS, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 1, 2015]
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 prov-
ince 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 neces-
sary. Did the jury need to find that Elonis had the pur-
pose of conveying a true threat? Was it enough if he knew
that his words conveyed such a threat? Would reckless-
ness 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
2 ELONIS v. UNITED STATES
Opinion of ALITO, J.
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 pro-
vide 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 decid-
ing the recklessness issue, and we should resolve that
question now.
I
Section 875(c) provides in relevant part:
“Whoever transmits in interstate or foreign com-
merce 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 re-
spect to the second element—that the thing transmitted
was a threat to injure the person of another. This Court
Cite as: 575 U. S. ____ (2015) 3
Opinion of ALITO, J.
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 state-
ment 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 expres-
sion 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 convic-
tion. 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 crimi-
nal 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.”
4 ELONIS v. UNITED STATES
Opinion of ALITO, J.
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 reckless-
ness. 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 any-
thing more than recklessness is needed. It is quite un-
usual 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 step-
ping 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
Cite as: 575 U. S. ____ (2015) 5
Opinion of ALITO, J.
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 neces-
sarily 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 inter-
preted as a true threat. Nothing in the Court’s non-
committal 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 emo-
tional 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
6 ELONIS v. UNITED STATES
Opinion of ALITO, J.
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 perfor-
mances 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 some-
thing similar.
The facts of this case illustrate the point. Imagine the
Cite as: 575 U. S. ____ (2015) 7
Opinion of ALITO, J.
effect on Elonis’s estranged wife when she read this: “ ‘If I
only knew then what I know now . . . I would have smoth-
ered 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 “ ‘ex-
tremely 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 pro-
tected 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 neces-
sary 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 state-
ments were made with reckless disregard of their falsity.
8 ELONIS v. UNITED STATES
Opinion of ALITO, J.
See New York Times, 376 U. S., at 279–280 (civil liability);
Garrison, 379 U. S., at 74–75 (criminal liability). Requir-
ing 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 judg-
ment 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 specifi-
cally 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. Hen-
ning, Federal Practice and Procedure §484, pp. 433–435
(4th ed. 2009).
At trial, Elonis objected to the District Court’s instruc-
tion, 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 state-
ments 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 Appel-
lant 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
Cite as: 575 U. S. ____ (2015) 9
Opinion of ALITO, J.
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 harmless-
error 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 in-
structions 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.
Cite as: 575 U. S. ____ (2015) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–983
_________________
ANTHONY DOUGLAS ELONIS, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 1, 2015]
JUSTICE THOMAS, dissenting.
We granted certiorari to resolve a conflict in the lower
courts over the appropriate mental state for threat prose­
cutions 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 mean­
ing 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 con­
viction. 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 advo­
cates 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 appro­
priate mental state for §875(c). All they know after to­
day’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.
2 ELONIS v. UNITED STATES
THOMAS, J., dissenting
This failure to decide throws everyone from appellate
judges to everyday Facebook users into a state of uncer­
tainty. 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 require­
ments 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 communica­
tion must be a serious expression of an intention to com­
mit unlawful physical violence, not merely “political hy­
perbole”; “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 inter­
pretation of a reasonable recipient familiar with the con­
text of the communication,” United States v. Darby, 37
F. 3d 1059, 1066 (CA4 1994) (emphasis added), lest histor­
Cite as: 575 U. S. ____ (2015) 3
THOMAS, J., dissenting
ically 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 re­
quirement of some mens rea for a crime is firmly embed­
ded,” 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 indi­
cia, we ordinarily apply the “presumption in favor of scien­
ter” 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 de­
fendant [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
4 ELONIS v. UNITED STATES
THOMAS, J., dissenting
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, “Con­
gress did not intend that the question as to the character
of the paper should depend upon the opinion or belief of
Cite as: 575 U. S. ____ (2015) 5
THOMAS, J., dissenting
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 stat­
ute, 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 con­
tents of the material and awareness of the obscene charac­
ter 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 defend­
ant 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, Con­
gress 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 know­
ingly and willfully otherwise makes any such threat
against the President.” Act of Feb. 14, 1917, ch. 64,
39 Stat. 919.
6 ELONIS v. UNITED STATES
THOMAS, J., dissenting
Courts applying this statute shortly after its enactment
appeared to require proof of only general intent. In Ra-
gansky v. United States, 253 F. 643 (CA7 1918), for in­
stance, a Court of Appeals held that “[a] threat is know­
ingly 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. Like­
wise, 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 Presi­
dent of the United States,” id., at 693 (internal quotation
marks omitted). As it explained, the defendant “is pun­
ishable 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
Cite as: 575 U. S. ____ (2015) 7
THOMAS, J., dissenting
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 consti­
tuting 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”). Like­
wise, 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 suppos­
edly “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 commu­
nication constituted a “threat” as a matter of law.
Demanding evidence only of general intent also corre­
sponds 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 require­
ment 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
8 ELONIS v. UNITED STATES
THOMAS, J., dissenting
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 back­
ground 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 exam­
ple, a defendant who is convicted of murder despite claim­
Cite as: 575 U. S. ____ (2015) 9
THOMAS, J., dissenting
ing 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 tradi­
tional 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 be­
tween “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 dis­
cussion 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 prohib­
iting 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 persua­
sive. To shore up its position, it asserts that the critical
portion of Rosen rejected an “ ‘ignorance of the law’ de­
fense,” and claims that “no such contention is at issue
here.” Ante, at 15. But the thrust of Elonis’ challenge is
10 ELONIS v. UNITED STATES
THOMAS, J., dissenting
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 ob­
scure 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) (de­
clining to read an “intent to defraud” element into a crimi­
nal 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 re­
quirement is significant, as Congress knows how to re­
quire a heightened mens rea in the context of threat of­
fenses. See §875(b) (providing for the punishment of
“[w]hoever, with intent to extort . . . , transmits in inter­
state or foreign commerce any communication containing
Cite as: 575 U. S. ____ (2015) 11
THOMAS, J., dissenting
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 punish­
ing 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 imag­
ined’ ” against “ ‘a Kindergarten class’ ” cannot stand with­
out 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-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.
12 ELONIS v. UNITED STATES
THOMAS, J., dissenting
II
In light of my conclusion that Elonis was properly con­
victed 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 histori­
cal 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 Territo­
Cite as: 575 U. S. ____ (2015) 13
THOMAS, J., dissenting
ries 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 Eng­
land 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 con­
veyed an actual threat to kill or murder,” “and that the
prisoner knew the contents of it, they ought to find him
14 ELONIS v. UNITED STATES
THOMAS, J., dissenting
guilty; but that if they thought he did not know the con­
tents, 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 lan­
guage, not the intent of its sender. See, e.g., Rex v. Bou-
cher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K. B.
1831) (concluding that an indictment was sufficient be­
cause “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 under­
stood 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 Abridge­
ment of American Law—“a necessary adjunct to the li­
brary of every American lawyer of distinction,” 1 C. War­
ren, 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 Gird-
wood. 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.” Pen-
nock v. Dialogue, 2 Pet. 1, 18 (1829); see also, e.g., Com-
monwealth v. Burdick, 2 Pa. 163, 164 (1846) (considering
English cases persuasive authority in interpreting similar
Cite as: 575 U. S. ____ (2015) 15
THOMAS, J., dissenting
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
16 ELONIS v. UNITED STATES
THOMAS, J., dissenting
between the offense of making threats with the intent to
extort and the offense of sending threatening letters with­
out 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 Proce­
dure §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 pass­
ing 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 ques­
tion.” 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, terror­
istic activities carried out by the Ku Klux Klan. Com-
monwealth 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
Cite as: 575 U. S. ____ (2015) 17
THOMAS, J., dissenting
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 stat­
ute. 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 con­
tinued 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 Vir­
ginia 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., at347–348. 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 expres­
sion within the ambit of the prohibition of intimidating
18 ELONIS v. UNITED STATES
THOMAS, J., dissenting
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 prece­
dents, 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 epi­
thets 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 state­
ments 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],” Cant-
well 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 with­
out proof that he knew the materials were legally obscene.
Hamling, 418 U. S., at 120–124. And our precedents allow
Cite as: 575 U. S. ____ (2015) 19
THOMAS, J., dissenting
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 legiti­
mate 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 constitu­
tionally proscribed.
The solution is not to abandon a mental-state require­
ment 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 Elo­
nis mailed obscene materials to his wife and a kindergar­
ten class, he could have been prosecuted irrespective of
whether he intended to offend those recipients or reck­
lessly disregarded that possibility. Yet when he threat­
ened 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 mental-
state 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 deci­
sion rests.
I respectfully dissent.