On June 1, the U.S. Supreme Court ruled that conviction under the federal law making it a crime to transmit threats requires more than proving that a reasonable person would feel threatened by the communication. 

Instead, the law requires the prosecution prove that the defendant had a culpable mental state in sending the threats.  But the Supreme Court left open the question of what that mental state must be.

The case is Elonis v. United States.


Anthony Elonis was charged under 18 U.S.C. 875(c) with making threats on Facebook.  The statute makes it illegal for any person to transmit in interstate commerce “any communication containing any threat … to injure the person of another.”

Elonis made various posts about a former employer, his ex-wife, schools, and law enforcement officials who investigated the posts. 

The posts included:  “Did you know that it’s illegal for me to say I want to kill my wife?”; “I’m checking out and making a name for myself[.] Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined”; and

“I’ve got enough explosives to take care of the State Police and the Sheriff’s Department.”

The posts also contained references to “freedom of speech.”

Elonis contended he did not intend to threaten anyone.  He requested a jury instruction that the prosecution must prove that he intended to make a threat.  The district court denied the request.  The court instructed the jury that they could convict if a reasonable person would view the words as a threat. 

The prosecutor’s closing argument emphasized that it was irrelevant whether Elonis intended the postings to be threats, saying “it doesn’t matter what he thinks.”
After conviction, the Third Circuit affirmed, holding that the statute requires proof only of the intent to communicate words that the defendant understands, and which a reasonable person would view as a threat.


The Supreme Court reversed, and held that the statute requires proof of a culpable mental state.

“The fact that the statute does not specify any required mental state … does not mean that none exists,” the Court said.  Construing criminal laws to lack a mental state is not favored because of “the basic principle that ‘wrongdoing must be conscious to be criminal.’”

“Here, ‘the crucial element separating legal innocence from wrongful conduct’ is the threatening nature of the communication,” the Court explained.  “The mental state requirement must therefore apply to the fact that the communication contains a threat.”

The “reasonable person” standard applied by the lower courts is acceptable in civil liability, but is inconsistent with the requirement of “awareness of some wrongdoing” for criminal conduct, the Court said. 

A reasonable person standard makes it irrelevant what a defendant thinks, and reduces liability for the crime to negligence, the Court added.  The Court has “long been reluctant” to infer negligence as a standard in criminal statutes.

Is recklessness enough?

But if negligence is not the standard, what is? 

The Court noted that Elonis contended at oral argument that recklessness would not be a sufficient mental state.  Given that neither Elonis nor the Government had briefed the matter, however, the Court expressly declined to decide that, leaving that question to a future case. 

The Court also declined to consider any First Amendment arguments in the case.

Justice Alito, writing only for himself, said that recklessness should suffice.  He would hold that a defendant may be convicted if he consciously disregards the risk that the communication will be interpreted as a threat.

But given the uncertainty over mental state left by the majority opinion, defense attorneys are well-advised to continue to argue that the prosecution must prove a higher mental state of a subjective intent to threaten.