Supreme Court Announces Scienter Requirement for Federal Threats, Has Implications for D.C.

In Elonis v. United States, the Supreme Court recently decided the question of what mental state is required for a person to be guilty under the federal threats statute. Anthony Elonis had posted a series of amateur rap lyrics on Facebook that his ex-wife and co-workers perceived as threatening. He argued that he could not be guilty of threats because the rap lyrics were creative expression, and not intended to threaten.

The federal threats statute 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). On its face, the statute only requires that the communication contain a threat. The statute does not contain any explanation of the mental state required for a person to be guilty under this statute, and the parties disagreed on this point. The government argued that a defendant only need to intend that the words be communicated, and that the defendant understood those words. According to the government, it would be enough that a “reasonable person” would understand the words to be a threat, even if the defendant did not intend to issue a threat. Mr. Elonis argued that this amounted to a “negligence” standard and that such an interpretation would undermine the principle that “wrongdoing must be conscious to be criminal.”

The Court rejected the government’s position and agreed with Mr. Elonis. It found that, based on the general criminal law principle that a defendant must be “blameworthy in mind,” a defendant must either intend to issue a threat, or communicate the words knowing that it will be viewed as a threat, for his conduct to be criminal. Since the jury instructions in Mr. Elonis’ case allowed a finding of guilt based on the lower, “negligence” standard, the Court reversed Mr. Elonis’ convictions. The Court did not decide the issue of whether a finding of recklessness would be sufficient.

Although this case is not technically binding on D.C. courts, since it addresses the federal statute, it will be highly persuasive authority here. The D.C. statutes, like the federal statute, do not contain any intent requirement. D.C. practitioners can argue that as in Elonis, general criminal law principles require that a person must intentionally or knowingly threaten in order to be guilty of a crime, and that it is not enough that a reasonable person would have perceived the communication as a threat. Although the D.C. Court of Appeals has held that a person may be guilty of threats regardless of whether he intended his words to be threatening (or even was reckless in this regard), the Supreme Court’s rationale in Elonis undermines this precedent and thus opens the door to defense arguments that an intent to threaten is required.  SN

Read full opinion here.