Shortly after his wife decided to leave him, 28-year-old Anthony Elonis, under the pseudonym “Tone Dougie,” began posting “self-styled ‘rap’ lyrics” on Facebook that contained “graphically violent language and imagery” concerning, among others, his estranged wife, a kindergarten class, and state and federal law enforcement. Elonis v. United States, 575 U.S. __, slip op. at 2 (2015). Elonis’ posts were often interspersed with disclaimers that the “lyrics” were “fictitious,” not intended to depict real people, an exercise of his First Amendment rights, and/or “therapeutic.” Id. However, many who knew him saw his posts as threatening, and a sampling of Elonis’ “rap” will demonstrate why:
If I only knew then what I know now, I would have smothered [you] 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
That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a kindergarten class
The only question is … which one?
Little Agent Lady stood so close
Took all the strength I had not to turn th[is] [F.B.I. agent] ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms of her partner
United States v. Elonis, No. 12-3798, slip op. at 4, 8-9 (3d Cir. 2013).
Shortly after these and similar posts were made, Elonis 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.” On its face, this statute requires that a communication be transmitted and that the communication contain a threat. However, “[i]t does not specify that the defendant must have any mental state with respect to these elements.” Supreme Court slip op., at 8.
At trial, Elonis’ counsel requested a jury instruction that the government needed to prove beyond a reasonable doubt that Elonis intended to communicate a true threat. However, the District Court found that negligence with respect to the communication of a threat was sufficient, instructing the jury that Elonis could be found guilty if “a reasonable person [in Elonis’ shoes] would foresee that his statements would be interpreted by [others] as a serious expression of an intention to inflict bodily injury ….” Third Circuit slip op., at 12. In light of this, in its closing argument the government “emphasizeed that it was irrelevant whether Elonis intended the postings to be threats – [saying] ‘it doesn’t matter what he thinks.’” Supreme Court slip op., at 7. Elonis was convicted on four of the five counts.
Elonis renewed his jury instruction challenge on appeal, but the Third Circuit affirmed and, consistent with the case law in the majority of federal circuits, held that Section 875(c) requires only the intent to communicate words that a reasonable person would view as a threat. Third Circuit slip op., at 18-22. Elonis appealed to the Supreme Court and on Monday the Court reversed, finding that the District Court’s instruction was not sufficient to support a conviction under Section 875(c).
Chief Justice Roberts, writing for the Court, observed that “[t]he fact that the statute does not specify any required mental state … does not mean that none exists.” Supreme Court slip op., at 9 (citing Morisette v. United States, 342 U.S. 246, 250 (1952)). Rather:
[t]he “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” We therefore generally “interpret criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.”
… [Indeed, while] “ignorance of the law is no excuse” … a defendant generally must “know the facts that make his conduct fit the definition of the offense, even if he does not know that those facts give rise to a crime.”
… [The Court will therefore] read into the statute “… that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’”
Id. at 10, 12 (internal citations omitted). Here, the “crucial element separating legal innocence from wrongful conduct” is the threatening nature of the communication; therefore, the mental state requirement must apply to the fact that the communication contains a threat. Id. at 13. Because Elonis’ conviction was premised not on his mental state but on how his posts would be understood by a reasonable person, the majority found that his conviction could not stand.
This holding is certainly sound – “culpability on the all-important element of the crime” should not be reduced to negligence absent Congress’s clear intent to make that the standard. Id. However, as both Justice Alito (concurring in part, dissenting in part) and Justice Thomas (dissenting) point out, the Court’s decision is disappointing in that it does not address what level of intent is required to support a conviction. Instead, we are left to guess whether the jury needed to find that Elonis had the purpose of conveying a true threat, that he knew his words conveyed such a threat, or simply that he was reckless. White Collar Alert will keep you posted as attorneys and judges tackle this issue moving forward.