As I noted in my post last week, the Supreme Court has a variety of interpretive tools at its disposal to rein in the ever-expanding reach of federal criminal law. Right on cue, the Court demonstrated the use of one of these tools this week in Elonis v. United States.
Elonis, a self-styled rapper, posted a variety of lyrics with violent themes on his Facebook page. Some of these lyrics related to his wife, some to coworkers, and some to law-enforcement personnel, among others. Elonis was eventually convicted under 18 U.S.C. §875(c), which prohibits individuals from transmitting in interstate commerce “any communication containing any threat . . . to injure the person of another.”
The Supreme Court reversed, ruling that Elonis’s jury had been improperly instructed.
More specifically, the trial judge erred by indicating that the jury could convict without regard to what Elonis actually thought he was doing. Maybe, for instance, Elonis thought he was making art that would not be perceived as a real threat by anyone. In such a case, the Supreme Court implied, Elonis should be acquitted. However, the jury instructions in his case permitted conviction based on whether “a reasonable person would foresee that the [rap lyrics] would be interpreted by those to whom [they were] communicate[d] . . . as a serious expression of an intention to inflict bodily injury” (emphasis added). Elonis, of course, might be entirely unreasonable in his perception of how his words would be understood by others, and if so, the Court concluded, he should not be convicted criminally for this simple negligence.
Where, you might wonder, did the Court come up with this requirement of subjective fault, or mens rea? Section 875(c) itself does not expressly include any such requirement; the statute only says that there must be a communication containing a “threat.” As the Court observed, the ordinary meaning of “threat” does not imply anything about bad intent:
For example, an anonymous letter that says “I’m going to kill you” is “an expression of an intention to inflict loss or harm” [the dictionary definition of “threat”] 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. (8)
Elonis thus resembles Yates, the subject of my last post. In both cases, the most straightforward reading of the statute would favor the government.
In Elonis, the government lost because of the long-established principle that criminal statutes should normally be interpreted to include a mens rea element:
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 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 criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” United States v. X-Citement Video, Inc., 513 U. S. 64, 70 (1994). (9-10)
The government argued that there was actually a “guilty knowledge” requirement in its interpretation of the statute: Elonis could not be convicted unless he comprehended the contents and context of his communication. However, the Court did not think this enough. “Put simply, the mental state requirement . . . turns on whether a defendant knew the character of what was sent, not simply its contents and context” (15). Thus, Elonis had to have some level of intent or awareness that his rap lyrics might be taken as an expression of an intent to harm.
What level of subjective awareness will suffice? Here, the Court fudged. The easy scenarios are where the defendant actually intended to communicate a threat, or where the defendant at least knew that the recipient would interpret the communication as a threat. Proof of such knowledge or intent would clearly be enough for conviction. The difficult scenario is that of recklessness: the defendant’s awareness of a substantial and unjustifiable risk that the communication would be taken as a threat. The Court specifically reserved judgment on whether recklessness would be enough.
The lower courts will now have to wrestle with this question. As they do, they might want to look to Yates and the plurality’s suggestion in that case that the severity of the potential sentence and the risks of disproportionate punishment should be taken into account in deciding whether to interpret a criminal statute more or less broadly. A recklessness standard might sweep in a great deal of language that is — unfortunately — an everyday part of the Internet. Felony charges and prison sentences for common behavior invite perceptions of discriminatory prosecution and disproportionate punishment. Courts should at least think twice before adopting an interpretation of §875(c) that might lead to such perceptions.