Anthony Douglas Elonis v. United States
By Kay L. Levine | Emory Law | June 29, 2015
On June 1, 2015, the Supreme Court decided that negligence cannot sustain a conviction under the federal threats statute, 18 U.S.C. section 875(c). Elonis v. United States was the Supreme Court’s first interpretation of section 875(c)’s mental state requirement; most of the federal circuits had addressed this question years earlier, and all but two reached a contrary conclusion about the sufficiency of negligence as a state of mind. The majority opinion was authored by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Ginsberg, Breyer, Sotomayor and Kagan. Justice Alito filed an opinion concurring in part and dissenting in part, while Justice Thomas dissented.
The case arose from a series of noxious Facebook posts by Elonis. Those posts, modeled (according to Elonis) on rap lyrics, contained “crude, degrading and violent” language indicating that he wanted to kill or seriously injure his ex-wife, kindergarten children, and federal agents. A grand jury indicted for five violations of section 875 (c), which makes it a crime to transmit in interstate commerce “any communication containing any threat … to injure the person of another.” He was ultimately convicted of four of the five counts, and the Third Circuit upheld his conviction.
The Supreme Court was asked to decide what mental state was required to convict someone of violating section 875(c), since the statute itself was silent on this point. Elonis alleged that threat-making has to be purposeful or intentional behavior in order to be criminal. He argued that it isn’t enough to prove the speaker is willingly speaking words he comprehends, even if those words are perceived by others as threatening. Unless the person speaking (or writing or typing) is consciously trying to make someone feel afraid, he argued, the communication is not actually a threat. The government disagreed, asking the court to foreground the effect on the reasonable recipient, rather than the speaker’s state of mind, when determining the character of the communication. That is, if a speaker is willingly speaking and knows the content of what he is saying, he is responsible for how the reasonable person would perceive those words.
Given the hierarchy of criminal law mental states, the issue was this: should the court interpret the statute so that negligence as to the communication’s threatening character is culpable behavior, or is something more required? If something more is required, is that something the highest mental state—purpose (as argued by Elonis)? Or should the court read in a mid-stage intent requirement: knowledge (knowing that it’s a practical certainty one’s recipient will feel fear) or recklessness (conscious disregard of the risk that one’s communication will inspire fear in the recipient)?
Chief Justice Roberts, writing for the majority, partially answered the question. His opinion made clear that negligence was not enough, and then assured that purpose or knowledge would be sufficient. The chief justice gave a series of reasons in support of his distinction: when Congress is silent on the mental state requirement, the court should be cautious about reading one in that sweeps too broadly, negligence is not usually enough for moral culpability in criminal court (even though it is a mainstay of tort litigation), negligence is rarely enough to sustain a conviction for serious criminal behavior (a crime that results in prison time), purpose and knowledge are what distinguish this sort of criminal behavior from innocent (but ill-advised) conduct. He cited a series of cases (Morissette v. United States, Staples v. United States, Liparota v. United States, US. v. Xcitement Video), in which the court held that criminal liability required fault, not mere inadvertence.
Importantly, the chief justice refused to address whether recklessness would sustain a conviction. This leads us to speculate that a majority of the court could not agree on the status of recklessness, and thus the success of future prosecutions premised on recklessness remains a bit of a question mark. The Model Penal Code advises that where a statute is silent on mental state a term of recklessness should be read in as the default, and many scholars believe that the line between recklessness and negligence is what distinguishes criminal from nonculpable conduct. Justice Alito made these points in his concurring/dissenting opinion.
Justice Thomas argued that negligence should suffice here. He emphasized that negligence as to an attendant circumstance term (which is what “threat” is in this statute) is quite different from negligence as to the conduct term itself (the act of communication). That is, under the rule adopted by most of the circuits prior to the Elonis decision, there was little risk of convicting an unaware defendant, because the government always had to prove that defendant knew he was committing acts that amount to communication. For that reason, Justice Thomas wrote, “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.” Finally, Justice Thomas and Justice Alito agreed that, because of the threatening nature of Elonis’ Facebook posts, his actions were not protected by the First Amendment.