Case Summary and Outcome

The U.S. Third Circuit Court of Appeals held that the true threats exception to the First Amendment right to freedom of speech does not require a jury to find that the defendant subjectively intended his statement to be understood as a real threat of causing injury or death under 18 U.S.C.A. § 875(c). The U.S. Supreme Court reversed and remanded the decision, holding that the government is required to show that the defendant was aware of the threatening nature of his communications.  

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Facts

From October to November 2010, the Defendant posted threatening statements on his Facebook page against his wife, employer, colleagues, a kindergarten class, police, and an FBI agent. He explicitly stated his intention to harm his wife, to detonate explosives in police departments, and to undertake a shooting rampage in a kindergarten class.

On December 08, 2010, the Defendant was arrested and charged with violating 18 U.S.C. § 875(c), which makes it a crime to transmit in interstate commerce “any communication containing a threat to kidnap or injure an individual.  The Defendant moved to dismiss a 5-count indictment against him, arguing that his statements were protected speech because he lacked the subjective intent to threaten.

The district court denied the motion.  He was later convicted by a jury trial and sentenced to 44 months imprisonment and three years of supervised release.

Following the court’s denial of his post-trial motion to dismiss the indictment and a new trial motion, the Defendant filed an appeal to the U.S. Third Circuit Court of Appeals, which held that jury was not required to find the Defendant’s specific intent in communicating threatening statements.   It accordingly affirmed the conviction.  The U.S. Supreme Court then granted certiorari to review the decision. 

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Decision Overview

Chief Justice Roberts delivered the majority opinion of the Court.

The main issue was whether Section 875(c) requires the government to show that the defendant intended to communicate a real threat of injuring a person.

The Defendant argued that the because the word “threat” itself conveys the meaning of intent to inflict harm, the statute’s required mental state is the author’s subjective intent for his statement to be perceived as threatening. The government, on the other hand, contended that Section 875(c) must be read in light of Sections 875(b) and 875(d), which expressly state the defendant’s subjective intent to extort.  According to the government, under the canon of expressio unius est exclusio alterius, the explicit inclusion of intent in those sections shows that Congress purposefully excluded the requirement of intent from Section 875(c).

The Court noted the general principle 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). It held that in interpreting a federal criminal statute that is silent on the element of mental state, the statute is read to include “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’ ” Carter v. United States, 530 U.S. 255, 269 (2000)

As applied to Section 875(c), the Court held that because the threatening nature of communication is what makes the conduct wrongful under the statute, the fact finder is required to find the defendant’s mental state in order to distinguish his alleged wrongful act from legal innocence. [p. 2011]   The jury convicted the Defendant based on the reasonable person standard test: “Whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.”   The Court ruled that this standard, which is often applied for finding liability in civil actions, is inconsistent with the conventional elements of federal criminal liability, which “generally does not turn solely on the results of an act without considering the defendant’s mental state.” [p. 2012] The Court was of the opinion that limiting the criminal liability under Section 875(c) to whether a reasonable person regards the communication as a real threat, regardless of the defendant’s intent, reduces the criminal nature of the offense to a civil negligence.  [p. 2011]  The Court declined to address whether a finding of recklessness could suffice the required mens rea of the statute.

Accordingly, the Court concluded that the district court erred in instructing the jury that the government was only required to show that a reasonable person would regard the Defendant’s communications as real threats. It reversed the judgment of the U.S. Court of Appeals for the Third Circuit, and remanded the case for further proceedings. 

Justice Alito delivered the Court’s concurring opinion. He argued that the Court’s majority opinion will leave confusion with attorneys and judges as to what mental state is required for conviction under Section 875(c). According to him, the issue of exactly what mental state is required by the statute should be resolved by the Court now instead of leaving open-ended questions for further litigations. He concluded that the mental state to be employed in this statute should be recklessness, and argued that not requiring more than recklessness would not violate the First Amendment protection.

Justice Thomas delivered the Court’s dissenting opinion.  He emphasized the concurring opinion’s point that the decision leaves little guidance for courts as to what mental state is required for conviction under the statute, and argued that a general intent standard should apply in this case. Therefore, the dissent argued that the Defendant was properly convicted under the statute.

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