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SCOTUS: Federal statute criminalizing threatening communication requires proof of scienter

Elonis v. United States, USSC No. 13-983, 2015 WL 2464051 (June 1, 2015), reversing United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013); Scotusblog page (including links to briefs and commentary)

This case involved a prosecution of Elonis for threats he made in postings on his Facebook page, and it was being widely watched for the First Amendment question it raised. But the Court sidestepped the constitutional question, and holds instead that 18 U.S.C. § 875(c), the federal statute he was prosecuted under, requires the government to prove some sort of mental state regarding the threatening nature of the communication.

As pertinent to this case, § 875(c) makes it a felony to “transmit[] in interstate or foreign commerce any communication containing … any threat to injure the person of another.” While this language requires that a communication be transmitted and that the communication contain a threat, it doesn’t say the defendant must have any particular mental state with respect to these elements; in particular, it doesn’t say whether the defendant must intend that his communication contain a threat.

But the statute’s silence about mental state is not the end of the matter, for the Court invokes the presumption in favor of a mental state element for statutes that criminalize otherwise innocent conduct:

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. ….  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[ ] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” United States v. X–Citement Video, Inc., 513 U.S. 64, 70 (1994). (Slip op. at 9-10).

Under the Court’s precedent, a federal criminal statute that is silent on the required mental state is interpreted to include “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 adequate, but in other cases requiring only a knowing act won’t be enough to protect the innocent actor. (Slip op. at 12).

While the parties agree a defendant under § 875(c) must know he’s transmitting a communication, that’s not enough, the Court holds:

…[C]ommunicating something is not what makes the conduct “wrongful.” Here “the crucial element separating legal innocence from wrongful conduct” is the threatening nature of the communication. …. The mental state requirement must therefore apply to the fact that the communication contains a threat. (Slip op. at 13).

Elonis’s jury wasn’t instructed that he had to intend to communicate a threat. Instead, it was told only to decide whether Elonis intentionally made 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 statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” Further, the government argued in closing that it was irrelevant whether Elonis intended the postings to be threats—“it doesn’t matter what he thinks.” (Slip op. at 6-7). The jury was thus asked to apply a negligence standard—”whether a reasonable person equipped with that knowledge, not the actual defendant, would have recognized the harmfulness of his conduct”—and that standard is inconsistent with “the conventional requirement for criminal conduct—awareness of some wrongdoing.” (Slip op. at 13-14, quoted sources omitted).

While it’s clear the “negligence standard” isn’t good enough, the decision doesn’t tell us exactly what mental state the statute does require. This prompts criticism from Justice Alito, who agrees that Elonis’s conviction should be reversed based on the faulty jury instruction but says the majority’s failure to clarify the mental state required under the statute will create “confusion” in the lower courts. (Concur/dissent at 1, 8). He also argues that the mental state of recklessness—a conscious disregard for the risk that a communication will be interpreted as a true threat—would be sufficient. (Id. at 2-8). The majority declines to decide this point because it was not briefed or argued by the parties. (Slip op. at 16). Justice Thomas’s dissent also criticizes the lack of a clear rule from the majority and argues the statute should be read to require only general intent—namely, that the defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context.

As for the First Amendment issue: A majority of lower courts have held that the First Amendment doesn’t require proof of intent to make a threat, while a few have come to the opposite conclusion on the strength of Virginia v. Black, 538 U.S. 343 (2003). See, e.g., Elonis, 730 F.3d at 327-32. Because it interprets the statute to require a mental state, the Court doesn’t reach the First Amendment issue. (Slip op. at 16). Only Justice Thomas’s dissent addresses the First Amendment question, and he rejects the claim that Black or any other case requires a particular mental state in threat prosecutions in order to satisfy the First Amendment. (Dissent at 17-19).

Last but not least: Unlike § 875(c), many Wisconsin statutes covering threats clearly require intent to threaten (e.g., § 940.203). But not all of them do. In terms of numbers of prosecutions, the stalking statute, § 940.32, is probably the most important statute that lacks an intent-to-threaten element and relies instead on the “negligence” standard found wanting by the Court in this case. When recently confronted with an argument that, after Black, the First Amendment requires an intent to threaten element in stalking prosecutions, the court of appeals relied on the now-reversed Third Circuit’s opinion in Elonis to reject the argument. State v. Maier, 2013AP1391-CR (Wis. Ct. App. May 8, 2014), an unpublished opinion we noted here. Maier filed a petition for review, which has been held in abeyance for the Supreme Court’s decision in this case, so it may be that our supreme court will soon weigh in on the issue. In the meantime, because the issue is still unresolved, consider raising and preserving the issue in prosecutions under § 940.32 or other statutes lacking an explicit intent-to-threaten element.

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