1. Case Brief: ELONIS v. UNITED STATES Supreme Court of the United States 135 S. Ct. 2001 (2015). Follow the provided format.

2. Answer question #1

CASE BRIEFING FORMAT PROF. DOBSON CASE NAME, COURT & YEAR FACTS: crime(s) facts leading to alleged criminal act; facts behind any defense PROCEDURAL POSTURE procedurally what happened in each lower court & why (if given) track procedurally how case went through court system to get to the court where the opinion is from ISSUES (PHRASE THESE AS QUESTIONS!) RESULT (DECISION; JUDGMENT): How did the Court procedurally dispose of the case? HOLDING: What rule(s) of law did the Court's decision announce? REASONING: Reconstruct the reasoning process step-by-step that led the Court to its Holding and Result CONCURRENCES (IF ANY) DISSENTS (IF ANY) ALL BRIEFS MUST BE DONE ON HARD COPY; READY TO TURN IN READ THE FOOTNOTES! USE BULLET POINTS IN DOING YOUR BRIEF BE OVER-INCLUSIVE RATHER THAN UNDER-INCLUSIVE! ELONIS v. UNITED STATES Supreme Court of the United States 135 S. Ct. 2001 (2015) CHier JusTice RoserTs delivered the opinion of the Court. Federal law 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). Petitioner was convicted of violating this provision under instructions that required the jury to find that he communicated what a reasonable person would regard as a threat. The question is whether the statute also requires that the defendant be aware of the threatening nature of the communication . . .. Anthony Douglas Elonis was an active user of the social networking Web site Facebook . . .. In May 2010, Elonis's wife of nearly seven years left him, taking with her their two young children. Elonis began ... posting self-styled \"rap\" lyrics ... [including] graphically violent language and imagery. This material was often interspersed with disclaimers that the lyrics were \"fictitious,\" with no intentional \"resemblance to real persons.\" . .. Elonis's posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife. Shortly after he was fired, Elonis posted an adaptation of a satirical sketch that he and his wife had watched together. In the actual sketch, called \"It's lllegal to Say ... ,\" a comedian explains that it is illegal for a person to say he wishes to kill the President, but not illegal to explain that it is illegal for him to say that. When Elonis posted the script of the sketch, however, he substituted his wife for the President. The posting was part of the basis for Count Two of the indictment, threatening his wife[.] . . . After viewing some of Elonis's posts, his wife felt \"extremely afraid for [her] life.\" A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order). Elonis referred to the order in another post ... : \"Fold up your [protection-from-abuse order] and put it in your pocket Is it thick enough to stop a bullet? ... And if worse comes to worse I've got enough explosives to take care of the State Police and the Sheriff's Department.\" That same month, ... Elonis posted an entry that gave rise to Count Four of his indictment: \"That's it, I've had about enough 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 hell hath no fury like a crazy man in a Kindergarten class The only questionis ... which one?\" ... A grand jury indicted Elonis for making threats to injure [various people including] . .. his estranged wife, police officers, [and] a kindergarten class ... all in violation of 18 U.S.C. 875(c). In the District Court, Elonis moved to dismiss the indictment for failing to allege that he had intended to threaten anyone. The District Court denied the motion, holding that Third Circuit precedent required only that Elonis \"intentionally made the communication, not that he intended to make a threat.\" At trial, ... [the government] presented as witnesses Elonis's wife and co-workers, all of whom said they felt afraid and viewed Elonis's posts as serious threats. Elonis requested a jury instruction that \"the government must prove that he intended to communicate a true threat.\" The District Court denied that request. The jury instructions instead informed the jury that A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein 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. ... Ajury convicted Elonis on four ... counts . ... Elonis renewed his challenge to the jury instructions in the Court of Appeals, contending that the jury should have been required to find that he intended his posts to be threats. The Court of Appeals disagreed . . . . We granted certiorari. . This statute requires that a communication be transmitted and that the communication contain a threat. It does not specify that the defendant must have any mental state with respect to these elements. In particular, it does not indicate whether the defendant must intend that his communication contain a threat. Elonis argues that the word \"threat\" itself in Section 875(c) imposes such a requirement. According to Elonis, every definition of \"threat\" or \"threaten\" conveys the notion of an intent to inflict harm. E.g., 11 Oxford English Dictionary 353 (1933) (\"to declare (usually conditionally) one's intention of inflicting injury upon\"); Webster's New International Dictionary 2633 (2d ed. 1954) (\"Law, specif., an expression of an intention to inflict loss or harm on another by illegal means\"); Black's Law Dictionary 1519 (8th ed. 2004) (\"A communicated intent to inflict harm or loss on another\"). These definitions, however, speak to what the statement conveys not to the mental state of the author. For example, an anonymous letter that says \"I'm going to kill you\" is \"an expression of an intention to inflict loss or harm\" regardless of the author's intent. A victim who receives that letter in the mail has received a threat, even if the author believes (wrongly) that his message will be taken as a joke . . . . The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that \"mere omission from a criminal enactment of any mention of criminal intent\" should not be read \"as dispensing with it.\" Morissette v. United States, 342 U.S. 246, 250 (1952). [The Court reviews the holdings in Morissette as well as Balint and X-Citement Video, Inc.] . .. When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute \"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) (quoting X-Citement Video, 513 U.S., at 72). In some cases, a general requirement that a defendant act knowingly is itself an adequate safeguard. For example, in Carter, we considered whether a conviction under 18 U.S.C. 2113(a), for taking \"by force and violence\" items of value belonging to or in the care of a bank, requires that a defendant have the intent to steal. 530 U.S., at 261. We held that once the Government proves the defendant forcibly took the money, \"the concerns underlying the presumption in favor of scienter are fully satisfied, for a forceful taking even by a defendant who takes under a good-faith claim of right falls outside the realm of 'otherwise innocent\" conduct. In other instances, however, requiring only that the defendant act knowingly \"would fail to protect the innocent actor.\" A statute similar to Section 2113(a) that did not require a forcible taking or the intent to steal \"would run the risk of punishing seemingly innocent conduct in the case of a defendant who peaceably takes money believing it to be his.\" In such a case, the Court explained, the statute \"would need to be read to require ... that the defendant take the money with 'intent to steal or purloin.\" Section 875(c), as noted, requires proof that a communication was transmitted and that it contained a threat. The \"presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.\" X-Citement Video, 513 U.S., at 72 (emphasis added). The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct \"wrongful.\" Here \"the crucial element separating legal innocence from wrongful conduct\" is the threatening nature of the communication. The mental state requirement must therefore apply to the fact that the communication contains a threat. Elonis's conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a \"reasonable person\" standard is a familiar feature of civil liability in tort law, but is inconsistent with \"the conventional requirement for criminal conduct awareness of some wrongdoing.\" Staples v. United States, 511 U.S. 600. 606-607 (1994), (quoting United States v. Dotterweich, 320 U.S. 277, 281 (1943); emphasis added). Having liability turn on whether a \"reasonable person\" regards the communication as a threat regardless of what the defendant thinks \"reduces culpability on the all-important element of the crime to negligence,\" Jeffries v. United States, 692 F.3d, 473. 484 (Sutton, J., dubitante) . . . . In light of the foregoing, Elonis's conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis's communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state . . .. There is no dispute that the mental state requirement in Section 875(c) 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. In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it . . . . The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. Notes and Questions 1. Should the Court have taken the next step to declare, in harmony with the MPC, a federal mens rea default rule of recklessness? Justice Alito thought so: Why is recklessness enough? My analysis of the mens rea issue follows the same track as the Court's, as far as it goes. | agree with the Court that we should presume that criminal statutes require some sort of mens rea for conviction. To be sure, this presumption marks a departure from the way in which we generally interpret statutes. We \"ordinarily resist reading words or elements into a statute that do not appear on its face.\" Bates v. United States, 522 U.S. 23, 29 (1997). But this step is justified by a well-established pattern in our criminal laws. \"For several centuries (at least since 1600) the different common law crimes have been so defined as to require, for guilt, that the defendant's acts or omissions be accompanied by one or more of the various types of fault (intention, knowledge, recklessness or more rarely negligence).\" 1 W. LaFave, Substantive Criminal Law 5.5, p. 381 (2003). Based on these \"background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded,\" we require \"some indication of congressional intent, express or implied, ... to dispense with mens rea as an element of a crime.\" Staples v. United States, 511 U.S. 600-606 (1994). For a similar reason, | agree with the Court that we should presume that an offense like that created by 875(c) requires more than negligence with respect to a critical element like the one at issue here. As the Court states, \"[w]hen interpreting federal criminal statutes that are silent on the required mental state, we read into the statute 'only that mens rea which is necessary to separate wrongful conduct from \"otherwise innocent conduct\"' \" (quoting Carter v. United States, 530 U.S. 255, 269 (2000)). Whether negligence is morally culpable is an interesting philosophical question, but the answer is at least sufficiently debatable to justify the presumption that a serious offense against the person that lacks any clear common-law counterpart should be presumed to require more. Once we have passed negligence, however, no further presumptions are defensible. In the hierarchy of mental states that may be required as a condition for criminal liability, the mens rea just above negligence is recklessness. Negligence requires only that the defendant \"should [have] be[en] aware of a substantial and unjustifiable risk,\" ALI, Model Penal Code 2.02(2)(d), p. 226 (1985), while recklessness exists \"when a person disregards a risk of harm of which he is aware,\" Farmer v. Brennan, 511 U.S. 825, 837 (1994); Model Penal Code 2.02(2)(c). And when Congress does not specify a mens rea in a criminal statute, we have no justification for inferring that anything more than recklessness is needed. [135 S. Ct. at 2014-15.]