After his wife left him, Elonis posted self-styled rap lyrics on Facebook containing violent language about his wife, law enforcement, and others. His posts included statements about killing his wife, explosives, a kindergarten shooting, and an FBI agent, though he also included disclaimers that the lyrics were fictitious and references to free speech. At trial, the government introduced testimony from people who viewed the posts as serious threats. The jury was instructed that Elonis could be convicted if a reasonable person would foresee the statements being interpreted as threats.
Issue
Does 18 U.S.C. §875(c) permit conviction based only on a negligence standard—whether a reasonable person would view the communication as a threat—or does the statute require proof that the defendant had a culpable mental state regarding the threatening nature of the communication?
Rule
When a federal criminal statute is silent as to mens rea, courts ordinarily read in the mental state necessary to separate wrongful from otherwise innocent conduct. Under 18 U.S.C. §875(c), the required mental state must apply to the threatening nature of the communication, and negligence is insufficient. The 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.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Phoenix, Noah Mercer sent his former roommate a text message across state lines stating, "Tomorrow I'll break your jaw in the parking lot." At trial, the judge instructed the jury that it could convict if a reasonable person in the recipient's position would interpret the message as a serious threat, without requiring any finding about Noah's own awareness of the message's threatening character.
If Noah is convicted under 18 U.S.C. §875(c), which is the strongest argument for reversal?
Explanation. The majority held that §875(c) requires more than a reasonable-person negligence standard as to the threatening nature of the communication. The scienter requirement must attach to the element that makes the conduct wrongful: that the communication contains a threat. It is enough if the defendant transmitted the communication for the purpose of issuing a threat or with knowledge it would be viewed as a threat. The Court also made clear that knowledge of illegality is not required, §875(c) is not limited to extortion, and actual fear is not the statutory mens rea requirement.