Federal law has criminalized communicating threats in interstate commerce since 1939.1 Even though this prohibition is in tension with principles of free speech,2 the Supreme Court has held that “true threats” are not protected by the First Amendment.3 Yet the Court has not fully defined this category of unprotected speech.4 Two central and unresolved questions are first whether a defendant can be convicted under the federal threats statute absent proof that he subjectively intended to threaten anyone, and second, if the statute itself does not require this evidence, whether the First Amendment does. In recent decades, a majority of lower courts have coalesced around a rule permitting criminal liability where a “reasonable person” would understand the defendant’s words as a threat.5 Last Term, in Elonis v. United States,6 the Supreme Court disagreed with this standard and held that a conviction under 18 U.S.C. § 875(c) may not be based solely on a reasonable person’s interpretation of the defendant’s words.7 The Court reversed the defendant’s conviction on narrow statutory grounds rooted in principles of mens rea and did not reference the constitutional “true threats” doctrine. The majority, however, left undecided the minimum mental state required for criminal liability. As a result, lower courts are left to answer both questions originally presented in Elonis. Certain parallels between obscenity and threats, hinted at in Elonis, suggest one approach to this task.
In May 2010, Anthony Douglas Elonis’s wife Tara left him.8 In the months that followed, Elonis used his Facebook account to publicize violent rap lyrics that he wrote under the rap pseudonym “Tone Dougie.”9 Some of Elonis’s posts contained alarming language directed at his newly estranged wife.10 For example: “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”11 Things escalated in the months that followed; by November, Tara was frightened enough by Elonis that she obtained a Protection From Abuse order.12 But the messages did not stop. In fact, Elonis responded: “Fold up your PFA and put it in your pocket[.] Is it thick enough to stop a bullet?”13 Elonis eventually caught the attention of the FBI when he described online his plan to “initiate the most heinous school shooting ever imagined.”14 After two agents visited his home to investigate, Elonis wrote publicly about the “Little Agent Lady” that it “[t]ook all the strength [he] had not to turn the bitch ghost” by “slit[ting] her throat.”15
In December, federal prosecutors intervened.16 A grand jury in the Eastern District of Pennsylvania indicted Elonis for communicating a threat to injure the person of another in violation of 18 U.S.C. § 875(c).17 Elonis moved to dismiss the indictment and argued that the Supreme Court’s definition of “true threat” in Virginia v. Black18 barred his prosecution absent proof that he subjectively intended to threaten the subjects of his posts.19 The district court denied his motion.20 At trial, the district court instructed the jury that Elonis could be convicted if a reasonable speaker would foresee that the relevant posts would be interpreted as threats.21 The jury convicted Elonis, and the court sentenced him to forty-four months of incarceration followed by three years of supervised release.22
The Third Circuit affirmed.23 Writing for the panel, Judge Scirica held that “Black does not clearly overturn the objective test the majority of circuits [have] applied to § 875(c).”24 Instead, the “objective intent standard protects non-threatening speech while addressing the harm caused by true threats.”25
The Supreme Court reversed and remanded.26 Writing for the Court, Chief Justice Roberts27 held that the district court’s jury instruction erroneously employed a “reasonable person” standard “inconsistent with ‘the conventional requirement for criminal conduct — awareness of some wrongdoing.’”28 The Chief Justice began with the text of § 875(c): a communication must be transmitted and that communication must contain a threat.29 But he concluded that the statute itself does not indicate a mental state: dictionary definitions of “threat” imply “the notion of an intent to inflict harm,” but these definitions “speak to what the statement conveys — not to the mental state of the author.”30
Faced with statutory silence on the required mens rea, the Chief Justice turned to a familiar maxim: “[W]rongdoing must be conscious to be criminal.”31 This background principle of criminal law means the Court “interpret[s] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.”32 But the presumption in favor of scienter is not without limit: the Court may graft onto a criminal statute only the mental state “necessary to separate wrongful conduct from ‘otherwise innocent conduct.’”33
The Chief Justice then returned to the statute. Because the only element of § 875(c) that separates “wrongful” from “innocent” conduct is “the threatening nature of the communication,” a defendant must possess some mental state regarding “the fact that the communication contains a threat.”34 As to this “crucial element,” the Third Circuit’s standard was akin to civil liability in tort law: Elonis’s conviction was premised on the jury’s conclusion that a “reasonable person” would interpret his communications as threats.35 The Chief Justice rejected this standard because it “reduces culpability on the all-important element of the crime to negligence.”36 The Court has “long been reluctant to infer that a negligence standard was intended in criminal statutes.”37
Justice Alito concurred in part and dissented in part.38 After reproving the majority for unjustifiably failing to clarify what mental state § 875(c) requires, Justice Alito argued that “recklessness [is] enough.”39 A defendant acts “wrongfully” if he “consciously disregards the risk” that his words “will be interpreted as a true threat.”40 Justice Alito agreed that the presumption in favor of scienter foreclosed a negligence standard, but contended that “no further presumptions [were] defensible.”41 Nor would a recklessness standard run afoul of the First Amendment under Justice Alito’s reasoning: The Constitution does not protect “true threats” because they “may cause serious emotional stress for the person threatened” and “may lead to a violent confrontation.”42 And although Elonis claimed that his words were “constitutionally protected works of art,” context revealed them to be unprotected “real threat[s] in the guise of rap lyrics.”43
Justice Thomas dissented.44 After observing that the majority failed to provide guidance to “everyone from appellate judges to ev-eryday Facebook users,”45 Justice Thomas applied “ordinary rules of statutory construction” and agreed with nine circuit courts that § 875(c) requires only “proof of general intent.”46 And, contrary to the majority’s conclusion, general intent — “knowledge with respect to the actus reus of the crime”47 — is not negligence. A defendant must know the “ordinary meaning in context” of the words he communicates48 but not that a “jury would conclude that his communication constituted a ‘threat’ as a matter of law.”49 Justice Thomas also rejected Elonis’s constitutional claim, offering historical evidence that “true threats” have never been afforded First Amendment protection.50
By adopting a definition of “threat” within § 875(c) that is not tethered to any mental state,51 the Elonis majority left the “recklessness door” conspicuously open, and yet provided almost no guidance to lower courts on whether to walk through it or how to confront the constitutional challenges to the statute on the other side. Drawing parallels between obscenity, another category of unprotected speech, and true threats suggests answers to these unresolved questions. Specifically, the analogy both hints that recklessness might be sufficient mens rea for conviction under § 875(c) and indicates ways in which courts might construe the statute in light of First Amendment interests.
In Elonis, the Court parted ways with lower courts that have almost uniformly interpreted § 875(c)’s use of “threat” in the shadow of the First Amendment’s “true threats” doctrine.52 Without reference to the First Amendment, the Elonis majority endorsed an objective statutory definition of “threat.”53 Though this approach is striking in light of Watts v. United States’s54 insistence that a statute that criminalizes “a form of pure speech[] must be interpreted with the commands of the First Amendment clearly in mind,”55 it is defensible in light of the principle that, whenever possible, cases should be decided on statutory rather than constitutional grounds. Still, the Court’s decision to reject a subjective definition is the reason a recklessness standard remains viable.56
Because Elonis was decided on statutory grounds, “true threats” remain a doctrinal puzzle for lower courts. Given the scarcity of relevant Supreme Court precedent, some scholars and judges have drawn parallels between threats and incitement, a category of unprotected speech that requires subjective intent.57 These arguments are persuasive because the line between threats and incitement is muddled: the same language may be viewed in context to be both a “true threat” and incitement to violence.58 Nonetheless, incitement is an imperfect analogue. Justifications for criminalizing language that incites violence focus on the risk that a third party will commit violence against the subject, not the harm the speech itself causes to the recipient.59 Moreover, unlike threats, which are often made privately, incitement frequently occurs in the public sphere.60 Within the categories of unprotected speech, obscenity provides an alternative comparison. Though still imperfect, an analogy to obscenity is superior to an analogy to incitement in solving the two questions left unanswered by Elonis.
First, obscenity and threats share characteristics that are relevant to the mens rea question at the heart of Elonis. Courts must now ascertain whether a reckless mental state adequately separates “wrongful” from “innocent” conduct in the context of threatening speech.61 “Wrongfulness” can be viewed in light of the harm that the statute seeks to prevent.62 Under this reasoning, it makes sense for threats to require the same mens rea as obscenity63 because these statutes target comparable harms, and the causal mechanism for these harms is the same. Both types of prohibitions mitigate a perceived individual and social harm that arises immediately upon mere exposure to the relevant speech64 by shielding audiences from expressions that produce a noncognitive — almost physical — response in the recipient.65
Second, similarities between the constitutional challenges in obscenity and threats cases may shed light on the lurking First Amendment issue after Elonis. Current precedent says “[a]ll that the First Amendment requires in the context of a § 875(c) prosecution is that the threat be real — a ‘true threat.’”66 But such a threat “must be distinguished from . . . constitutionally protected speech”67 because not all statements “intending to create a fear of violence” are unprotected.68 Only speech that “communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” may be criminalized.69 This formulation mirrors Justice Brennan’s admonitions in Roth v. United States70 that “sex and obscenity are not synonymous”71 and that “standards for judging obscenity” must protect speech that treats sex in a nonobscene manner.72 And just as “[t]here is no external measuring rod for obscenity,”73 so too does the term “true threat” lack an ex ante discernable definition.
Building on this analogy can guide lower courts as they consider both the threshold statutory question of mens rea under § 875(c) and future constitutional challenges to the statute.
To begin, although the Elonis Court does not make these parallels explicit, it implies that obscenity cases might hold lessons for the mens rea question in the threats context. The Court centers its most in-depth analysis of mens rea on obscenity cases.74 The disagreement between the majority and Justice Thomas over the reading of these cases confirms that the issue of mens rea for obscenity is itself fraught.75 But the Elonis majority characterized a key obscenity precedent in a light that resembles recklessness. It described Hamling v. United States76 as requiring that a defendant know the “character” of obscene material he distributes, “not simply its contents and context,”77 and emphasized that such a requirement ensured “not innocent but calculated purveyance of filth” was outlawed.78 “Calculated purveyance” is not a precise term, but the majority would require only that Elonis “know the threatening nature of his communication.”79 Under this formulation, Hamling sounds like a recklessness standard. The defendant must know the “character” of the material — and thus the substantial and unjustifiable risk that it is obscene — yet distribute it nonetheless.80
By juxtaposing Hamling’s “calculated purveyance” standard with the facts of Elonis, the majority invites lower courts to adopt a mens rea of recklessness for § 875(c). Notably, the Court in Elonis flatly rejected the strongest argument for distinguishing “threat” from “obscenity” and imposing a mens rea requirement of purpose — the textual argument that the word “threat” itself contains an intentionality component.81 Without this textual hook, mandating different levels of intentionality for obscenity and threats would create a discontinuity between two otherwise analogous speech prohibitions.82
Similarly, the obscenity cases provide lessons for addressing the constitutional question left unresolved by Elonis. The majority’s example of the actus reus of § 875(c) — “express[ing] an intention to inflict loss or harm”83 — is potentially sweeping.84 In fact, the reasoning in many “true threats” cases still looks a lot like this: “I know it when I see it.”85 But if criminal liability turns solely on whether the defendant subjectively knew of and disregarded the risk that his message was objectively a threat, then clearly delineating ex ante what constitutes a constitutionally unprotected threat is paramount. The Court’s obscenity cases are again apposite: criminal liability turns on how a jury categorizes the relevant material, making an adequate definition for “obscenity” essential to the constitutionality of such statutes.
The Court’s current definition of a “true threat,” however, is categorical and thus resembles early treatment of “obscenity.”86 “[T]rue threats” are cast as “a peculiar genus . . . which is as distinct, recognizable, and classifiable as poison ivy is among other plants.”87 Whether a particular utterance can be prosecuted under § 875(c) “becomes a mere matter of [ex post] classification” left to the jury.88 Yet as countless challenges to obscenity statutes reveal,89 such a standard is in tension with the principle that speech restrictions not be overbroad or vague.
Consequently, to address alleged constitutional infirmities in § 875(c), the Court’s doctrinal response to challenges to obscenity prosecutions is an apt starting point. Specifically, “threat,” like “obscenity,” is susceptible to judicial narrowing.90 Courts have already attempted to devise tests that separate out threatening language that may not be suppressed consistent with the First Amendment.91 The purpose of analogizing threats to obscenity is to highlight that such an approach — narrowing the actus reus component of a constitutionally suspect criminal speech prohibition rather than imposing a heightened specific intent mens rea — is an alternative to Brandenburg v. Ohio’s92 constitutional requirement of a specific intent to incite violence before a defendant may be convicted on the basis of his language.93
Whenever the state undertakes to suppress pure speech, difficult constitutional concerns abound. The Court’s tortured obscenity line of cases is illustrative. Yet because courts have been grasping toward a constitutionally adequate definition of “threat,” but have also defaulted to the kind of “I know it when I see it” reasoning employed in early obscenity cases, they might acknowledge this parallel and model a narrowed definition of “threat” off of the rule for “obscenity” that was finally settled in Miller v. California. Though “[t]his may not be an easy road, free from difficulty,”94 such a construction of “threat” is one alternative to reading a mental state requirement of knowledge or purpose into § 875(c).