Elonis v. United States

(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

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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., at

347–348. 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.