Feds can't base threat conviction on whether "reasonable person" would perceive message as a threat

|The Volokh Conspiracy |

The Supreme Court has handed down Elonis v. United States, the Facebook threats case. In a narrow opinion by Chief Justice Roberts, based only on statutory interpretation, the Court holds that a conviction under the interstate threat statute cannot stand when it is based on the jury's assessment that a reasonable person would perceive the message as a threat. There needs to be some proof of the defendant's culpable state of mind, too—some evidence that he knew the message would be perceived as a threat, or at least was aware of that possibility.

The Elonis case is tricky because the federal interstate threat statute, 18 U.S.C. 875(c), does not include any explicit mental state requirement. Under longstanding caselaw, this required the Court to read into the statute enough of a mental state statute requirement "to separate wrongful conduct from otherwise innocent conduct." The question was how much of a mental state that required. The key paragraph is this:

The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct "wrongful." Here "the crucial element separating legal innocence from wrongful conduct" is the threatening nature of the communication. The mental state requirement must therefore apply to the fact that the communication contains a threat.

The Court overturns the conviction under this standard because the jury convicted based only on a "reasonable person"-perception standard:

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 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 principles, "what [Elonis] thinks" does matter. App. 286.

But how much does it matter? Here the Court doesn't fully answer. Most importantly, the Court declines to say if recklessness is sufficient because the issue wasn't briefed and was only an issue that came up at argument:

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 question 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 argument the Court of Appeals did not consider, the parties did not brief, and counsel addressed in "only the most cursory fashion at oral argument").

Having overturned the conviction, the Court also declines to read the First Amendment issues. Justice Alito concurs in parts and dissents in part; Justice Thomas dissents. Both criticize the majority for the narrowness of its decision.

A few thoughts:

1) This is a strong opinion by Chief Justice Roberts. It sticks with the established basics of interpreting federal criminal statutes, relying heavily on the classic Morissette case and its progeny. Pretty classic federal statutory interpretation. And I think it applies those principles persuasively.

2) The narrowness of the opinion was a wise move, I think. Trying to answer which mental state below knowledge would suffice might end up a lot harder than it looks. The big problem is that federal criminal law lacks a coherent framework of mental states below intent and knowledge. Federal criminal law mental states are a mess. They're mostly a mishmosh of confusing common law mental states with some occasional Model Penal Code (MPC) tossed in for flavor. As most law students learn, the MPC includes exceedingly specific definitions of when a mental state is "reckless" or "negligent" in an MPC jurisdiction. But there's a major conceptual problem with trying to impute the MPC's mental states here: The federal interstate threat statute predates the MPC by a few decades. For the Court to readily read into the 1930s-era threat statute a very technical definition first proposed by a law reform group in the late 1950s would require some fancy footwork. Would you impute the entire technical definition jot for jot? Or just parts of it, as I believe Justice Alito ends up doing in his opinion? Hard questions. Probably better not to try, at least absent more substantial briefing on the question. So on the whole I think the Court was probably wise to stick to the narrow ground.

3) Obvious congrats to co-blogger John Elwood for the victory. Less obvious congrats to Judge Jeff Sutton, the author of United States v. Jeffries, 692 F. 3d 473 (CA6 2012), which drew attention to the issue and is cited at the key point of the opinion.

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