June 1, 2015

"We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prosecutions 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 mean­ing 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 con­viction. 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 advo­cates 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 appro­priate 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."

Writes Justice Thomas, the sole dissenter in Elonis v. United States (PDF) one of this morning's new Supreme Court cases.

The case involves rap lyrics published on a Facebook page. So we get Chief Justice Roberts explaining Facebook: "Users of that Web site may post items on their Facebook page that are accessible to other users, including Facebook 'friends' who are notified when new content is posted." And lots of rap lyrics like: "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..." The federal statute "does not specify any required mental state," but that "does not mean that none exists," Roberts writes.
[T]he “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.”... 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” typically 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,” even if he does not know that those facts give rise to a crime....

When 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.’ ”
So... at least recklessness must be shown and whether more than recklessness is required is left until another day.

20 comments:

lgv said...

While I can see both sides of the argument, I find having this "only general intent" bothersome. I also see why the government likes it that way. Under more general intent they get all kinds of prosecutorial discretion to decide what speech is a criminal threat.

Currently, we can argue whether we should limit speech that: 1) makes people uncomfortable, 2) is hateful, 3) doesn't come with trigger warnings, and 4) forms some sort of micro-aggression. But hey, once those words get classified as criminal threats, we can all get behind stopping such speech.

JCC said...

Well, for instance, Elonis made pretty specific threats about going to a nearby elementary school, such as: "...initiate the most heinous school shooting ever imagined...". He made specific threats against individual FBI agents, his wife and others, claimed he was going to wear an explsove device if they tried to arrest him, etc. If the police didn't arrest this guy, and he did do, say, some school shooting, people would be demanding the authorities be prosecuted for criminal nonfeasance.

This was not the case of DOJ trying to expand criminalization of free speech (not that I think they're above such).

And it seems like a kind of Justice O'Connor kind of decision, avoiding making any real ruling at all and guaranteeing future business in the appellate division.

JCC said...

And I believe that after hsi release at the end of his sentence, Mr Elonis was re-arrested for clacking his ex (or ex mother-in-law) on the head with cooking pot or something, fulfilling no doubt his dream of becoming a rap artist.

JCC said...

geez, I hate noticing those spelling things only after I hit "publish"

BarrySanders20 said...

I thought clacking was a rap reference that I didn't get

EDH said...

As the headline for this post appears on the Althouse main page, is a prosecution for speech now called a "prose-cution", or was that hyphenation mere happenstance?

Richard Dolan said...

This issue has been around for a long time. The Court's opinion cites a much earlier concurring opinion by Marshall, in which Brennan joined, rejecting the 'reasonable person' standard (Rogers v. US, 1975), which is as far as today's decision goes. But the real point (in Rogers and now this case) was that a 'reasonable person' standard -- essentially just the negligence standard applied in tort cases -- is inadequate to protect important First Amendment values. Marshall discussed the issue explicitly; today's majority leaves it in the background (although Alito gets into it a bit).

The Court's opinion leaves open whether proof of recklessness, rather than the defendant's subjective intent to threaten, will suffice. Recklessness is also essentially a tort-based standard, although it certainly shows up more often in the criminal context than does mere negligence. The problem with recklessness is that it, too, is determined by looking at how someone other than the defendant viewed what was going on.

In his concurrence, Alito agrees that mere negligence is not enough, but contends that recklessness is sufficient. He adopts the Model Penal Code's definition for these purposes -- recklessness exists “when a person disregards a risk of harm of which he is aware.” The problem is that sharply worded criticism is intended to cause the recipient to feel bad enough that he might reconsider whatever act or omission was the subject of the particular criticism. Many delicate snowflakes today would unquestionably deem that to be "a risk of harm" which the speaker not only "disregarded" but positively intended.

More generally, the ordinary definition of a 'threat' is a communication conveying the speaker's intention to cause some specific harm to the person supposedly being threatened. It's a small step from that premise to the notion that the gov't must prove the speaker's subjective intent specifically to threaten.

All of this is especially important in evaluating speech on the internet. Two cases, U.S. v. Bagdasarian, 652 F.3d 1113, 1119 & n.18 (9th Cir. 2011), and U.S. v. Turner, 720 F.3d 411 (2d Cir. 2013), show why. Bagdasarian was convicted of threatening Obama when he was running in 2008, because he posted comments saying that someone should shoot Obama. The Ninth Circuit (2-1) reversed, finding that the gov't had failed to prove that Bagdasarian intended to utter a true threat rather than (at most) an exhortation. Turner was convicted of threatening federal appellate judges for saying that one of their decisions (narrowly construing Second Amendment rights) was such an abomination that they "deserved to be killed," quoting Jefferson's 'tree of liberty' letter. The Second Circuit (also 2-1) affirmed the conviction, finding that Turner's words “were quite reasonably interpreted by the jury as the serious expression of an intent that these judges, too, come to harm.” I don't see how the Turner approach survives today's decision, while Bagdasarian went further than today's majority.

This Court has been protective of First Amendment values in many contexts where the facts were unattractive (stolen valor, campaign finance, protests at military funerals, computer-generated kiddie porn, to name a few), and time will tell whether the same will prevail in this context. These are issues that are only going to become more important over time, as the internet continues to revolutionize how people communicate.

lgv said...

Richard Dolan, thank you for your post.

James Pawlak said...

When we were under"The Common Law" ignorance of what was a crime was no excuse.

With the cancer-like expansion of Laws, Administrative Rules/Regulations AND lawyers, that assumption should/must be open to question (eg "Jury Nullification"?)

Today, "rules" have become so complicated that six-teams of attorneys will generate ten "understandings".

I suggest that the following instruction be required in all criminal/civil/administrative cases with punitive penalties possible: "If you conclude that the law upon which this case is based cannot be understood by a citizen of ordinary education and mental ability, you are directed to immediately enter a finding of "NOT GUILTY" and are not to consider the evidence or other instructions."

Of course, that instruction would NOT apply when the defendant is an attorney as s/he must be presumed "To Know The Law".

Anonymous said...

If attorneys were required to know the law in every area, law school would be 10 years long. That's why we know generally how to look up the law, instead. Yes, I know (knew) my practice area, but very little about other areas.

Fernandinande said...

[T]he “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.”.

Then psychopaths like Hastert and the Clintons can't be proven to be criminals since they don't (can't) feel guilt.

Unknown said...

After reading through part of the decision, there is no way this guy should be let off to continue his process (of healing?). Had he actually carried out any of the threats we would be talking about how the legal system failed to protect in the face of incontrovertible evidence that this guy was cocked and loaded.

Ann Althouse said...

"When we were under"The Common Law" ignorance of what was a crime was no excuse."

So you missed the part of the post where I quote Roberts saying "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” typically 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,” even if he does not know that those facts give rise to a crime...."

Ann Althouse said...

That is, Elonis didn't need to know that threats were illegal, but he did need to have some level of knowledge (more than mere negligence) that he was making a threat (that is, that he knew (or maybe only should have known) that what he said would be understood as a serious expression of an intent to kill or seriously harm someone.

JCC said...

...But the SC declined to actually define where that level (of knowledge) was. More than negligent, maybe reckless, less than should have known perhaps...or something.

Thanks, CJ Roberts, for clearing all that up. Should be a big help in the future.

But really, poor jury instructions led to this, yes? The government may have reached whatever level is required, but the jury was improperly instructed on what the requirement was to find guilt.

Jolan False said...

And the Court uses "dubitante"--twice!

Sammy Finkelman said...

It's understandable that the court didn't like either standard, and it is actually reasonable not to want to decide this all at once without concrete examples.

Maybe you need it to be either intended as a threat, or both perceived as a threat, and hard to explain other than as a seriously intended threat. In some cases res ipso loquitor. The rap lyrics didn't have to be interpreted as a threat. A llot depends on surrounding circumstances, including what other people have done in the past.


Anonymous said...

I guess any day now we get to read that our constitution supports homosex marriage and Obama care can be rewritten by judges to make it work.

Kirk Parker said...

Fernandinande,

"Then psychopaths like Hastert and the Clintons can't be proven to be criminals since they don't (can't) feel guilt. "

That's a completely inaccurate understanding of what mens rea means.

Coupe said...

If you want to hear some funny pronunciation, take a listen to Google Translate:

Certiorari