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«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 ...»

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(Slip Opinion)


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.






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 kindergarten 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 Facebook 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 requested 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 reasonable person would foresee that his statements would be interpreted 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 reasonable 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 intend 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 extort” requirements in neighboring Sections 875(b) and (d) should preclude courts from implying an unexpressed “intent to threaten” requirement 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 enactment 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 Video, 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 require... specific intent.” Ibid. Pp. 9–13.

(c) The “presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” X-Citement Video, 513 U. S., at 72. In the context of Section 875(c), that requires proof that a communication was transmitted and that it contained a threat. And because “the crucial element separating legal innocence from wrongful conduct,” id., at 73, is the threatening nature of the communication, the mental state requirement must apply to the fact that the communication contains a Cite as: 575 U. S. ____ (2015) 3


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 conduct 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 requirement 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. The Court declines to address whether a mental state of recklessness would also suffice. Given the disposition 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

–  –  –

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, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

–  –  –

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 communicated 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.

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 notified 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 vioELONIS 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 “fictitious,” 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


“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 satirical 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:


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 limits. 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 “extremely 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


“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 Department.” 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 Kindergarten 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 Facebook 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 Facebook page, called “Little Agent Lady,” which led to Count


“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?

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