ELONIS v. UNITED STATES
- Syllabus [Syllabus] [PDF]
- Opinion, Roberts [Roberts Opinion] [PDF]
- Concurrence, Thomas [Thomas Concurrence] [PDF]
- Concur-Dissent, Breyer [Breyer Concur-Dissent] [PDF]
- Dissent, Sotomayor [Sotomayor Dissent] [PDF]
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
HORNE et al. v. DEPARTMENT OF AGRICULTURE
certiorari to the united states court of appeals for the ninth circuit
The Agricultural Marketing Agreement Act of 1937 authorizes the Secretary of Agriculture to promulgate “marketing orders” to help maintain stable markets for particular agricultural products. The marketing order for raisins established a Raisin Administrative Committee that imposes a reserve requirement—a requirement that growers set aside a certain percentage of their crop for the account of the Government, free of charge. The Government makes use of those raisins by selling them in noncompetitive markets, donating them, or disposing of them by any means consistent with the purposes of the program. If any profits are left over after subtracting the Government’s expenses from administering the program, the net proceeds are distributed back to the raisin growers. In 2002–2003, raisin growers were required to set aside 47 percent of their raisin crop under the reserve requirement. In 2003–2004, 30 percent. Marvin Horne, Laura Horne, and their family are raisin growers who refused to set aside any raisins for the Government on the ground that the reserve requirement was an unconstitutional taking of their property for public use without just compensation. The Government fined the Hornes the fair market value of the raisins as well as additional civil penalties for their failure to obey the raisin marketing order.
The Hornes sought relief in federal court, arguing that the reserve requirement was an unconstitutional taking of their property under the Fifth Amendment. On remand from this Court over the issue of jurisdiction, Horne v. Department of Agriculture, 569 U. S. ___, the Ninth Circuit held that the reserve requirement was not a Fifth Amendment taking. The court determined that the requirement was not a per se taking because personal property is afforded less protection under the Takings Clause than real property and because the Hornes, who retained an interest in any net proceeds, were not completely divested of their property. The Ninth Circuit held that, as in cases allowing the government to set conditions on land use and development, the Government imposed a condition (the reserve requirement) in exchange for a Government benefit (an orderly raisin market). It held that the Hornes could avoid relinquishing large percentages of their crop by “planting different crops.” 730 F. 3d 1128, 1143.
Held: The Fifth Amendment requires that the Government pay just compensation when it takes personal property, just as when it takes real property. Any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking—it does not mean the raisins have not been appropriated for Government use. Nor can the Government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce. Pp. 4–18.
(a) The Fifth Amendment applies to personal property as well as real property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home. Pp. 4–9.
(1) This principle, dating back as far as Magna Carta, was codified in the Takings Clause in part because of property appropriations by both sides during the Revolutionary War. This Court has noted that an owner of personal property may expect that new regulation of the use of property could “render his property economically worthless.” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1027–1028. But there is still a “longstanding distinction” between regulations concerning the use of property and government acquisition of property. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 323. When it comes to physical appropriations, people do not expect their property, real or personal, to be actually occupied or taken away. Pp. 4–8.
(2) The reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee. The Committee disposes of those raisins as it wishes, to promote the purposes of the raisin marketing order. The Government’s formal demand that the Hornes turn over a percentage of their raisin crop without charge, for the Government’s control and use, is “of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 432. Pp. 8–9.
(b) The fact that the growers are entitled to the net proceeds of the raisin sales does not mean that there has been no taking at all. When there has been a physical appropriation, “we do not ask . . . whether it deprives the owner of all economically valuable use” of the item taken. Tahoe-Sierra Preservation Council, 535 U. S., at 323. The fact that the growers retain a contingent interest of indeterminate value does not mean there has been no taking, particularly when that interest depends on the discretion of the taker, and may be worthless, as it was for one of the two years at issue here. Andrus v. Allard, 444 U. S. 51, distinguished. Once there is a taking, as in the case of a physical appropriation, any payment from the Government in connection with that action goes, at most, to the question of just compensation. Pp. 9–12.
(c) The taking in this case also cannot be characterized as part of a voluntary exchange for a valuable government benefit. In one of the years at issue, the Government insisted that the Hornes part with 47 percent of their crop for the privilege of selling the rest. But the ability to sell produce in interstate commerce, although certainly subject to reasonable government regulation, is not a “benefit” that the Government may withhold unless growers waive constitutional protections. Ruckelshaus v. Monsanto Co., 467 U. S. 986, distinguished. Leonard & Leonard v. Earle, 279 U. S. 392, distinguished. Pp. 12–14.
(d) The Hornes are not required to first pay the fine and then seek compensation under the Tucker Act. See Horne, 569 U. S., at ___. Because they have the full economic interest in the raisins the Government alleges should have been set aside for its account—i.e., they own the raisins they grew as well as the raisins they handled, having paid the growers for all of their raisins, not just their free-tonnage raisins—they may raise a takings-based defense to the fine levied against them. There is no need for the Ninth Circuit to calculate the just compensation due on remand. The clear and administrable rule is that “just compensation normally is to be measured by ‘the market value of the property at the time of the taking.’ ” United States v. 50 Acres of Land, 469 U. S. 24, 29. Here, the Government already calculated that amount when it fined the Hornes the fair market value of the raisins. Pp. 14–18.
750 F. 3d 1128, reversed.
Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and in which Ginsburg, Breyer, and Kagan, JJ., joined as to Parts I and II. Thomas, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
MARVIN D. HORNE, et al., PETITIONERS v. DEPARTMENT OF AGRICULTURE
on writ of certiorari to the united states court of appeals for the ninth circuit
Chief Justice Roberts delivered the opinion of the Court.
Under the United States Department of Agriculture’s California Raisin Marketing Order, a percentage of a grower’s crop must be physically set aside in certain years for the account of the Government, free of charge. The Government then sells, allocates, or otherwise disposes of the raisins in ways it determines are best suited to maintaining an orderly market. The question is whether the Takings Clause of the Fifth Amendment bars the Government from imposing such a demand on the growers without just compensation.
The Agricultural Marketing Agreement Act of 1937 authorizes the Secretary of Agriculture to promulgate “marketing orders” to help maintain stable markets for particular agricultural products. The marketing order for raisins requires growers in certain years to give a percentage of their crop to the Government, free of charge. The required allocation is determined by the Raisin Administrative Committee, a Government entity composed largely of growers and others in the raisin business appointed by the Secretary of Agriculture. In 2002–2003, this Committee ordered raisin growers to turn over 47 percent of their crop. In 2003–2004, 30 percent.
Growers generally ship their raisins to a raisin “handler,” who physically separates the raisins due the Government (called “reserve raisins”), pays the growers only for the remainder (“free-tonnage raisins”), and packs and sells the free-tonnage raisins. The Raisin Committee acquires title to the reserve raisins that have been set aside, and decides how to dispose of them in its discretion. It sells them in noncompetitive markets, for example to exporters, federal agencies, or foreign governments; donates them to charitable causes; releases them to growers who agree to reduce their raisin production; or disposes of them by “any other means” consistent with the purposes of the raisin program. 7 CFR §989.67(b)(5) (2015). Proceeds from Committee sales are principally used to subsidize handlers who sell raisins for export (not including the Hornes, who are not raisin exporters). Raisin growers retain an interest in any net proceeds from sales the Raisin Committee makes, after deductions for the export subsidies and the Committee’s administrative expenses. In the years at issue in this case, those proceeds were less than the cost of producing the crop one year, and nothing at all the next.
The Hornes—Marvin Horne, Laura Horne, and their family—are both raisin growers and handlers. They “handled” not only their own raisins but also those produced by other growers, paying those growers in full for all of their raisins, not just the free-tonnage portion. In 2002, the Hornes refused to set aside any raisins for the Government, believing they were not legally bound to do so. The Government sent trucks to the Hornes’ facility at eight o’clock one morning to pick up the raisins, but the Hornes refused entry. App. 31; cf. post, at 11 (Sotomayor, J., dissenting). The Government then assessed against the Hornes a fine equal to the market value of the missing raisins—some $480,000—as well as an additional civil penalty of just over $200,000 for disobeying the order to turn them over.
When the Government sought to collect the fine, the Hornes turned to the courts, arguing that the reserve requirement was an unconstitutional taking of their property under the Fifth Amendment. Their case eventually made it to this Court when the Government argued that the lower courts had no jurisdiction to consider the Hornes’ constitutional defense to the fine. Horne v. Department of Agriculture, 569 U. S. ___ (2013) (Horne I ). We rejected the Government’s argument and sent the case back to the Court of Appeals so it could address the Hornes’ contention on the merits. Id., at ___ (slip op., at 15).
On remand, the Ninth Circuit agreed with the Hornes that the validity of the fine rose or fell with the constitutionality of the reserve requirement. 750 F. 3d 1128, 1137 (2014). The court then considered whether that requirement was a physical appropriation of property, giving rise to a per se taking, or a restriction on a raisin grower’s use of his property, properly analyzed under the more flexible and forgiving standard for a regulatory taking. The court rejected the Hornes’ argument that the reserve requirement was a per se taking, reasoning that “the Takings Clause affords less protection to personal than to real property,” and concluding that the Hornes “are not completely divested of their property rights,” because growers retain an interest in the proceeds from any sale of reserve raisins by the Raisin Committee. Id., at 1139.
The court instead viewed the reserve requirement as a use restriction, similar to a government condition on the grant of a land use permit. See Dolan v. City of Tigard, 512 U. S. 374 (1994); Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987). As in such permit cases, the Court of Appeals explained, the Government here imposed a condition (the reserve requirement) in exchange for a Government benefit (an orderly raisin market). And just as a landowner was free to avoid the government condition by forgoing a permit, so too the Hornes could avoid the reserve requirement by “planting different crops.” 750 F. 3d, at 1143. Under that analysis, the court found that the reserve requirement was a proportional response to the Government’s interest in ensuring an orderly raisin market, and not a taking under the Fifth Amendment.
We granted certiorari. 574 U. S. ___ (2015).
The petition for certiorari poses three questions, which we answer in turn.
The first question presented asks “Whether the government’s ‘categorical duty’ under the Fifth Amendment to pay just compensation when it ‘physically takes possession of an interest in property,’ Arkansas Game & Fish Comm’n v. United States, 133 S. Ct. 511, 518 (2012), applies only to real property and not to personal property.” The answer is no.
There is no dispute that the “classic taking [is one] in which the government directly appropriates private property for its own use.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 324 (2002) (brackets and internal quotation marks omitted). Nor is there any dispute that, in the case of real property, such an appropriation is a per se taking that requires just compensation. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426–435 (1982).
Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.
The Takings Clause provides: “[N]or shall private property be taken for public use, without just compensation.” U. S. Const., Amdt. 5. It protects “private property” without any distinction between different types. The principle reflected in the Clause goes back at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings. Clause 28 of that charter forbade any “constable or other bailiff ” from taking “corn or other provisions from any one without immedi-ately tendering money therefor, unless he can have postponement thereof by permission of the seller.” Cl. 28 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 329 (2d ed. 1914).
The colonists brought the principles of Magna Carta with them to the New World, including that charter’s protection against uncompensated takings of personal property. In 1641, for example, Massachusetts adopted its Body of Liberties, prohibiting “mans Cattel or goods of what kinde soever” from being “pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford.” Massachusetts Body of Liberties ¶8, in R. Perry, Sources of Our Liberties 149 (1978). Virginia allowed the seizure of surplus “live stock, or beef, pork, or bacon” for the military, but only upon “paying or tendering to the owner the price so estimated by the appraisers.” 1777 Va. Acts ch. XII. And South Carolina authorized the seizure of “necessaries” for public use, but provided that “said articles so seized shall be paid for agreeable to the prices such and the like articles sold for on the ninth day of October last.” 1779 S. C. Acts §4.
Given that background, it is not surprising that early Americans bridled at appropriations of their personal property during the Revolutionary War, at the hands of both sides. John Jay, for example, complained to the New York Legislature about military impressment by the Continental Army of “Horses, Teems, and Carriages,” and voiced his fear that such action by the “little Officers” of the Quartermasters Department might extend to “Blankets, Shoes, and many other articles.” A Hint to the Legislature of the State of New York (1778), in John Jay, The Making of a Revolutionary 461–463 (R. Morris ed. 1975) (emphasis deleted). The legislature took the “hint,” passing a law that, among other things, provided for compensation for the impressment of horses and carriages. 1778 N. Y. Laws ch. 29. According to the author of the first treatise on the Constitution, St. George Tucker, the Takings Clause was “probably” adopted in response to “the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practised during the revolutionary war, without any compensation whatever.” 1 Blackstone’s Commentaries, Editor’s App. 305–306 (1803).
Nothing in this history suggests that personal property was any less protected against physical appropriation than real property. As this Court summed up in James v. Campbell, 104 U. S. 356, 358 (1882), a case concerning the alleged appropriation of a patent by the Government:
“[A patent] confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser.”
Prior to this Court’s decision in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), the Takings Clause was understood to provide protection only against a direct appropriation of property—personal or real. Pennsylvania Coal expanded the protection of the Takings Clause, holding that compensation was also required for a “regulatory taking”—a restriction on the use of property that went “too far.” Id., at 415. And in Penn Central Transp. Co. v. New York City, 438 U. S. 104, 124 (1978), the Court clarified that the test for how far was “too far” required an “ad hoc” factual inquiry. That inquiry required considering factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action.
Four years after Penn Central, however, the Court reaffirmed the rule that a physical appropriation of property gave rise to a per se taking, without regard to other factors. In Loretto, the Court held that requiring an owner of an apartment building to allow installation of a cable box on her rooftop was a physical taking of real property, for which compensation was required. That was true without regard to the claimed public benefit or the economic impact on the owner. The Court explained that such protection was justified not only by history, but also because “[s]uch an appropriation is perhaps the most serious form of invasion of an owner’s property interests,” depriving the owner of the “the rights to possess, use and dispose of” the property. 458 U. S., at 435 (internal quotation marks omitted). That reasoning—both with respect to history and logic—is equally applicable to a physical appropriation of personal property.
The Ninth Circuit based its distinction between real and personal property on this Court’s discussion in Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992), a case involving extensive limitations on the use of shorefront property. 750 F. 3d, at 1139–1141. Lucas recognized that while an owner of personal property “ought to be aware of the possibility that new regulation might even render his property economically worthless,” such an “implied limitation” was not reasonable in the case of land. 505 U. S., at 1027–1028.
Lucas, however, was about regulatory takings, not direct appropriations. Whatever Lucas had to say about reasonable expectations with regard to regulations, people still do not expect their property, real or personal, to be actually occupied or taken away. Our cases have stressed the “longstanding distinction” between government acquisitions of property and regulations. Tahoe-Sierra Preservation Council, 535 U. S., at 323. The different treatment of real and personal property in a regulatory case suggested by Lucas did not alter the established rule of treating direct appropriations of real and personal property alike. See 535 U. S., at 323. (It is “inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a ‘regulatory taking,’ and vice versa” (footnote omitted)).
The reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee. App. to Pet. for Cert. 179a; Tr. of Oral Arg. 31. The Committee’s raisins must be physically segregated from free-tonnage raisins. 7 CFR §989.66(b)(2). Reserve raisins are sometimes left on the premises of handlers, but they are held “for the account” of the Government. §989.66(a). The Committee disposes of what become its raisins as it wishes, to promote the purposes of the raisin marketing order.
Raisin growers subject to the reserve requirement thus lose the entire “bundle” of property rights in the appropriated raisins—“the rights to possess, use and dispose of ” them, Loretto, 458 U. S., at 435 (internal quotation marks omitted)—with the exception of the speculative hope that some residual proceeds may be left when the Government is done with the raisins and has deducted the expenses of implementing all aspects of the marketing order. The Government’s “actual taking of possession and control” of the reserve raisins gives rise to a taking as clearly “as if the Government held full title and ownership,” id., at 431 (internal quotation marks omitted), as it essentially does. The Government’s formal demand that the Hornes turn over a percentage of their raisin crop without charge, for the Government’s control and use, is “of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine.” Id., at 432.
The Government thinks it “strange” and the dissent “baffling” that the Hornes object to the reserve requirement, when they nonetheless concede that “the government may prohibit the sale of raisins without effecting a per se taking.” Brief for Respondent 35; post, at 12 (Sotomayor, J., dissenting). But that distinction flows naturally from the settled difference in our takings jurisprudence between appropriation and regulation. A physical taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). As Justice Holmes noted, “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way.” Pennsylvania Coal, 260 U. S., at 416.
The second question presented asks “Whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion.” The answer is no.
The Government and dissent argue that raisins are fungible goods whose only value is in the revenue from their sale. According to the Government, the raisin marketing order leaves that interest with the raisin growers: After selling reserve raisins and deducting expenses and subsidies for exporters, the Raisin Committee returns any net proceeds to the growers. 7 CFR §§989.67(d), 989.82, 989.53(a), 989.66(h). The Government contends that because growers are entitled to these net proceeds, they retain the most important property interest in the reserve raisins, so there is no taking in the first place. The dissent agrees, arguing that this possible future revenue means there has been no taking under Loretto. See post, at 2–6.
But when there has been a physical appropriation, “we do not ask . . . whether it deprives the owner of all economically valuable use” of the item taken. Tahoe-Sierra Preservation Council, 535 U. S., at 323; see id., at 322 (“When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.” (citation omitted)). For example, in Loretto, we held that the installation of a cable box on a small corner of Loretto’s rooftop was a per se taking, even though she could of course still sell and economically benefit from the property. 458 U. S., at 430, 436. The fact that the growers retain a contingent interest of indeterminate value does not mean there has been no physical taking, particularly since the value of the interest depends on the discretion of the taker, and may be worthless, as it was for one of the two years at issue here.
The dissent points to Andrus v. Allard, 444 U. S. 51 (1979), noting that the Court found no taking in that case, even though the owners’ artifacts could not be sold at all. Post, at 6. The dissent suggests that the Hornes should be happy, because they might at least get something from what had been their raisins. But Allard is a very different case. As the dissent recognizes, the owners in that case retained the rights to possess, donate, and devise their property. In finding no taking, the Court emphasized that the Government did not “compel the surrender of the artifacts, and there [was] no physical invasion or restraint upon them.” 444 U. S., at 65–66. Here of course the raisin program requires physical surrender of the raisins and transfer of title, and the growers lose any right to control their disposition.
The Government and dissent again confuse our inquiry concerning per se takings with our analysis for regulatory takings. A regulatory restriction on use that does not entirely deprive an owner of property rights may not be a taking under Penn Central. That is why, in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), we held that a law limiting a property owner’s right to exclude certain speakers from an already publicly accessible shopping center did not take the owner’s property. The owner retained the value of the use of the property as a shopping center largely unimpaired, so the regulation did not go “too far.” Id., at 83 (quoting Pennsylvania Coal Co., 260 U. S., at 415). But once there is a taking, as in the case of a physical appropriation, any payment from the Government in connection with that action goes, at most, to the question of just compensation. See Suitum v. Tahoe Regional Planning Agency, 520 U. S. 725, 747–748 (1997) (Scalia, J., concurring in part and concurring in judgment). That is not an issue here: The Hornes did not receive any net proceeds from Raisin Committee sales for the years at issue, because they had not set aside any reserve raisins in those years (and, in any event, there were no net proceeds in one of them).
The third question presented asks “Whether a governmental mandate to relinquish specific, identifiable prop- erty as a ‘condition’ on permission to engage in commerce effects a per se taking.” The answer, at least in this case, is yes.
The Government contends that the reserve requirement is not a taking because raisin growers voluntarily choose to participate in the raisin market. According to the Government, if raisin growers don’t like it, they can “plant different crops,” or “sell their raisin-variety grapes as table grapes or for use in juice or wine.” Brief for Respondent 32 (brackets and internal quotation marks omitted).
“Let them sell wine” is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history. In any event, the Government is wrong as a matter of law. In Loretto, we rejected the argument that the New York law was not a taking because a landlord could avoid the requirement by ceasing to be a landlord. We held instead that “a landlord’s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation.” 458 U. S., at 439, n. 17. As the Court explained, the contrary argument “proves too much”:
“For example, it would allow the government to require a landlord to devote a substantial portion of his building to vending and washing machines, with all profits to be retained by the owners of these services and with no compensation for the deprivation of space. It would even allow the government to requisition a certain number of apartments as permanent government offices.” Ibid.
As the Court concluded, property rights “cannot be so easily manipulated.” Ibid.
The Government and dissent rely heavily on Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984). There we held that the Environmental Protection Agency could require companies manufacturing pesticides, fungicides, and rodenticides to disclose health, safety, and environmental information about their products as a condition to receiving a permit to sell those products. While such information included trade secrets in which pesticide manufacturers had a property interest, those manufacturers were not subjected to a taking because they received a “valuable Government benefit” in exchange—a license to sell dangerous chemicals. Id., at 1007; see Nollan, 483 U. S., at 834, n. 2 (discussing Monsanto).
The taking here cannot reasonably be characterized as part of a similar voluntary exchange. In one of the years at issue here, the Government insisted that the Hornes turn over 47 percent of their raisin crop, in exchange for the “benefit” of being allowed to sell the remaining 53 percent. The next year, the toll was 30 percent. We have already rejected the idea that Monsanto may be extended by regarding basic and familiar uses of property as a “Government benefit” on the same order as a permit to sell hazardous chemicals. See Nollan, 483 U. S., at 834, n. 2 (distinguishing Monsanto on the ground that “the right to build on one’s own property—even though its exercise can be subjected to legitimate permitting requirements—cannot remotely be described as a ‘governmental benefit’ ”). Selling produce in interstate commerce, although certainly subject to reasonable government regulation, is similarly not a special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection. Raisins are not dangerous pesticides; they are a healthy snack. A case about conditioning the sale of hazardous substances on disclosure of health, safety, and environmental information related to those hazards is hardly on point.
Leonard & Leonard v. Earle, 279 U. S. 392 (1929), is also readily distinguishable. In that case, the Court upheld a Maryland requirement that oyster packers remit ten percent of the marketable detached oyster shells or their monetary equivalent to the State for the privilege of harvesting the oysters. But the packers did “not deny the power of the State to declare their business a privilege,” and the power of the State to impose a “privilege tax” was “not questioned by counsel.” Id., at 396. The oysters, unlike raisins, were “feræ naturæ” that belonged to the State under state law, and “[n]o individual ha[d] any property rights in them other than such as the state may permit him to acquire.” Leonard v. Earle, 155 Md. 252, 258, 141 A. 714, 716 (1928). The oyster packers did not simply seek to sell their property; they sought to appropriate the State’s. Indeed, the Maryland Court of Appeals saw the issue as a question of “a reasonable and fair compensation” from the packers to “the state, as owner of the oysters.” Id., at 259, 141 A., at 717 (internal quotation marks omitted).
Raisins are not like oysters: they are private property—the fruit of the growers’ labor—not “public things subject to the absolute control of the state,” id., at 258, 141 A., at 716. Any physical taking of them for public use must be accompanied by just compensation.
The Government correctly points out that a taking does not violate the Fifth Amendment unless there is no just compensation, and argues that the Hornes are free to seek compensation for any taking by bringing a damages action under the Tucker Act in the Court of Federal Claims. See 28 U. S. C. §1491(a)(1); Monsanto, 467 U. S., at 1020. But we held in Horne I that the Hornes may, in their capacity as handlers, raise a takings-based defense to the fine levied against them. We specifically rejected the contention that the Hornes were required to pay the fine and then seek compensation under the Tucker Act. See 569 U. S., at ___ (slip op., at 13–14) (“We . . . conclude that the [Agricultural Marketing Agreement Act] withdraws Tucker Act jurisdiction over [the Hornes’] takings claim. [The Hornes] (as handlers) have no alternative remedy, and their takings claim was not ‘premature’ when presented to the Ninth Circuit.”).
As noted, the Hornes are both growers and handlers. Their situation is unusual in that, as handlers, they have the full economic interest in the raisins the Government alleges should have been set aside for its account. They own the raisins they grew and are handling for themselves, and they own the raisins they handle for other growers, having paid those growers for all their raisins (not just the free-tonnage amount, as is true with respect to most handlers). See supra, at 2–3; Tr. of Oral Arg. 3–4. The penalty assessed against them as handlers included the dollar equivalent of the raisins they refused to set aside—their raisins. 750 F. 3d, at 1135, n. 6; Brief for Petitioners 15. They may challenge the imposition of that fine, and do not have to pay it first and then resort to the Court of Federal Claims.
Finally, the Government briefly argues that if we conclude that the reserve requirement effects a taking, we should remand for the Court of Appeals to calculate “what compensation would have been due if petitioners had complied with the reserve requirement.” Brief for Respondent 55. The Government contends that the calculation must consider what the value of the reserve raisins would have been without the price support program, as well as “other benefits . . . from the regulatory program, such as higher consumer demand for raisins spurred by enforcement of quality standards and promotional activities.” Id., at 55–56. Indeed, according to the Government, the Hornes would “likely” have a net gain under this theory. Id., at 56.
The best defense may be a good offense, but the Government cites no support for its hypothetical-based approach, or its notion that general regulatory activity such as enforcement of quality standards can constitute just compensation for a specific physical taking. Instead, our cases have set forth a clear and administrable rule for just compensation: “The Court has repeatedly held that just compensation normally is to be measured by ‘the market value of the property at the time of the taking.’ ” United States v. 50 Acres of Land, 469 U. S. 24, 29 (1984) (quoting Olson v. United States, 292 U. S. 246, 255 (1934)).
Justice Breyer is concerned that applying this rule in this case will affect provisions concerning whether a condemning authority may deduct special benefits—such as new access to a waterway or highway, or filling in of swampland—from the amount of compensation it seeks to pay a landowner suffering a partial taking. Post, at 5 (opinion concurring in part and dissenting in part); see Bauman v. Ross, 167 U. S. 548 (1897) (laying out of streets and subdivisions in the District of Columbia). He need not be. Cases of that sort can raise complicated questions involving the exercise of the eminent domain power, but they do not create a generally applicable exception to the usual compensation rule, based on asserted regulatory benefits of the sort at issue here. Nothing in the cases Justice Breyer labels “Bauman and its progeny,” post, at 5, suggests otherwise, which may be why the Solicitor General does not cite them.1
In any event, this litigation presents no occasion to consider the broader issues discussed by Justice Breyer. The Government has already calculated the amount of just compensation in this case, when it fined the Hornes the fair market value of the raisins: $483,843.53. 750 F. 3d, at 1135, n. 6. The Government cannot now disavow that valuation, see Reply Brief 21–23, and does not suggest that the marketing order affords the Hornes compensation in that amount. There is accordingly no need for a remand; the Hornes should simply be relieved of the obligation to pay the fine and associated civil penalty they were assessed when they resisted the Government’s effort to take their raisins. This case, in litigation for more than a decade, has gone on long enough.
The judgment of the United States Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
1 For example, in United States v. Miller, 317 U. S. 369, 377 (1943), the Court—in calculating the fair market value of land—discounted an increase in value resulting from speculation “as to what the Govern- ment would be compelled to pay as compensation” after the land was earmarked for acquisition. In United States v. Sponenbarger, 308 U. S. 256, 265 (1939), the Court determined there was no taking in the first place, when the complaint was merely that a Government flood control plan provided insufficient protection for the claimant’s land. McCoy v. Union Elevated R. Co., 247 U. S. 354, 363 (1918), similarly involved a claim “for damages to property not actually taken.” So too Reichelderfer v. Quinn, 287 U. S. 315 (1932). There the Court held that claimants who had paid a special assessment when Rock Creek Park in Washington, D. C., was created—because the Park increased the value of their property—did not thereby have the right to prevent Congress from altering use of part of the Park for a fire station 38 years later. In Dohany v. Rogers, 281 U. S. 362 (1930), the law authorizing the taking did “not permit the offset of benefits for a railroad,” and therefore was “not subject to the objection that it fails to provide adequate compensation . . . and is therefore unconstitutional.” Id., at 367, and n. 1 (quoting Fitzsimons & Galvin, Inc. v. Rogers, 243 Mich. 649, 665, 220 N. W. 881, 886 (1928)). And in Norwood v. Baker, 172 U. S. 269 (1898), the issue was whether an assessment to pay for improvements exceeded a village’s taxing power. Perhaps farthest afield are the Regional Rail Reorganization Act Cases, 419 U. S. 102, 153 (1974), which involved valuation questions arising from the Government reorganization of northeast and midwest railroads. The Court in that case held that the legislation at issue was not “merely an eminent domain statute” but instead was enacted “pursuant to the bankruptcy power.” Id., at 151, 153.
Concurrence and Dissent
SUPREME COURT OF THE UNITED STATES
ANTHONY DOUGLAS ELONIS, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the third circuit
Justice Alito, concurring in part and dissenting in part.
In Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court famously proclaimed: “It is emphatically the province and duty of the judicial department to say what the law is.” Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.
The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.
This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.
There is no justification for the Court’s refusal to provide an answer. The Court says that “[n]either Elonis nor the Government has briefed or argued” the question whether recklessness is sufficient. Ante, at 16. But in fact both parties addressed that issue. Elonis argued that recklessness is not enough, and the Government argued that it more than suffices. If the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument. In my view, however, we are capable of deciding the recklessness issue, and we should resolve that question now.
Section 875(c) provides in relevant part:
“Whoever transmits in interstate or foreign commerce any communication containing . . . any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”
Thus, conviction under this provision requires proof that: (1) the defendant transmitted something, (2) the thing transmitted was a threat to injure the person of another, and (3) the transmission was in interstate or foreign commerce.
At issue in this case is the mens rea required with respect to the second element—that the thing transmitted was a threat to injure the person of another. This Court has not defined the meaning of the term “threat” in §875(c), but in construing the same term in a related statute, the Court distinguished a “true ‘threat’ ” from facetious or hyperbolic remarks. Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam). In my view, the term “threat” in §875(c) can fairly be defined as a statement that is reasonably interpreted as “an expression of an intention to inflict evil, injury, or damage on another.” Webster’s Third New International Dictionary 2382 (1976). Conviction under §875(c) demands proof that the defendant’s transmission was in fact a threat, i.e., that it is reasonable to interpret the transmission as an expression of an intent to harm another. In addition, it must be shown that the defendant was at least reckless as to whether the transmission met that requirement.
Why is recklessness enough? My analysis of the mens rea issue follows the same track as the Court’s, as far as it goes. I agree with the Court that we should presume that criminal statutes require some sort of mens rea for conviction. See ante, at 9–13. 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, 605–606 (1994).
For a similar reason, I 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. See ante, at 13–14. 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.” ’ ” Ante, at 12 (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. It is quite un- usual for us to interpret a statute to contain a requirement that is nowhere set out in the text. Once we have reached recklessness, we have gone as far as we can without stepping over the line that separates interpretation from amendment.
There can be no real dispute that recklessness regarding a risk of serious harm is wrongful conduct. In a wide variety of contexts, we have described reckless conduct as morally culpable. See, e.g., Farmer, supra, at 835–836 (deliberate indifference to an inmate’s harm); Garrison v. Louisiana, 379 U. S. 64, 75 (1964) (criminal libel); New York Times Co. v. Sullivan, 376 U. S. 254, 279–280 (1964) (civil libel). Indeed, this Court has held that “reckless disregard for human life” may justify the death penalty. Tison v. Arizona, 481 U. S. 137, 157 (1987). Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.
Accordingly, I would hold that a defendant may be convicted under §875(c) if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat. Nothing in the Court’s non-committal opinion prevents lower courts from adopting that standard.
There remains the question whether interpreting §875(c) to require no more than recklessness with respect to the element at issue here would violate the First Amendment. Elonis contends that it would. I would reject that argument.
It is settled that the Constitution does not protect true threats. See Virginia v. Black, 538 U. S. 343, 359–360 (2003); R. A. V. v. St. Paul, 505 U. S. 377, 388 (1992); Watts, 394 U. S., at 707–708. And there are good reasons for that rule: True threats inflict great harm and have little if any social value. A threat may cause serious emotional stress for the person threatened and those who care about that person, and a threat may lead to a violent confrontation. It is true that a communication containing a threat may include other statements that have value and are entitled to protection. But that does not justify constitutional protection for the threat itself.
Elonis argues that the First Amendment protects a threat if the person making the statement does not actually intend to cause harm. In his view, if a threat is made for a “ ‘therapeutic’ ” purpose, “to ‘deal with the pain’ . . . of a wrenching event,” or for “cathartic” reasons, the threat is protected. Brief for Petitioner 52–53. But whether or not the person making a threat intends to cause harm, the damage is the same. And the fact that making a threat may have a therapeutic or cathartic effect for the speaker is not sufficient to justify constitutional protection. Some people may experience a therapeutic or cathartic benefit only if they know that their words will cause harm or only if they actually plan to carry out the threat, but surely the First Amendment does not protect them.
Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. To make this point, his brief includes a lengthy excerpt from the lyrics of a rap song in which a very well-compensated rapper imagines killing his ex-wife and dumping her body in a lake. If this celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. “Taken in context,” lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Watts, supra, at 708. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.
The facts of this case illustrate the point. Imagine the effect on Elonis’s estranged wife when she read this: “ ‘If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.’ ” 730 F. 3d 321, 324 (CA3 2013). Or this: “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.” Ibid. Or this: “Fold up your [protection from abuse order] and put it in your pocket[.] Is it thick enough to stop a bullet?” Id., at 325.
There was evidence that Elonis made sure his wife saw his posts. And she testified that they made her feel “ ‘extremely afraid’ ” and “ ‘like [she] was being stalked.’ ” Ibid. Considering the context, who could blame her? Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. See Brief for The National Network to End Domestic Violence et al. as Amici Curiae 4–16. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.
It can be argued that §875(c), if not limited to threats made with the intent to harm, will chill statements that do not qualify as true threats, e.g., statements that may be literally threatening but are plainly not meant to be taken seriously. We have sometimes cautioned that it is necessary to “exten[d] a measure of strategic protection” to otherwise unprotected false statements of fact in order to ensure enough “ ‘breathing space’ ” for protected speech. Gertz v. Robert Welch, Inc., 418 U. S. 323, 342 (1974) (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)). A similar argument might be made with respect to threats. But we have also held that the law provides adequate breathing space when it requires proof that false statements were made with reckless disregard of their falsity. See New York Times, 376 U. S., at 279–280 (civil liability); Garrison, 379 U. S., at 74–75 (criminal liability). Requiring proof of recklessness is similarly sufficient here.
Finally, because the jury instructions in this case did not require proof of recklessness, I would vacate the judgment below and remand for the Court of Appeals to decide in the first instance whether Elonis’s conviction could be upheld under a recklessness standard.
We do not lightly overturn criminal convictions, even where it appears that the district court might have erred. To benefit from a favorable ruling on appeal, a defendant must have actually asked for the legal rule the appellate court adopts. Rule 30(d) of the Federal Rules of Criminal Procedure requires a defendant to “inform the court of the specific objection and the grounds for the objection.” An objection cannot be vague or open-ended. It must specifically identify the alleged error. And failure to lodge a sufficient objection “precludes appellate review,” except for plain error. Rule 30(d); see also 2A C. Wright & P. Henning, Federal Practice and Procedure §484, pp. 433–435 (4th ed. 2009).
At trial, Elonis objected to the District Court’s instruction, but he did not argue for recklessness. Instead, he proposed instructions that would have required proof that he acted purposefully or with knowledge that his statements would be received as threats. See App. 19–21. He advanced the same position on appeal and in this Court. See Brief for Petitioner 29 (“Section 875(c) requires proof that the defendant intended the charged statement to be a ‘threat’ ” (emphasis in original)); Corrected Brief of Appellant in No. 12–3798 (CA3), p. 14 (“[A] ‘true threat’ has been uttered only if the speaker acted with subjective intent to threaten” (same)). And at oral argument before this Court, he expressly disclaimed any agreement with a recklessness standard—which the Third Circuit remains free to adopt. Tr. of Oral Arg. 8:22–23 (“[W]e would say that recklessness is not justif[ied]”). I would therefore remand for the Third Circuit to determine if Elonis’s failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction.
The Third Circuit should also have the opportunity to consider whether the conviction can be upheld on harmless-error grounds. “We have often applied harmless-error analysis to cases involving improper instructions.” Neder v. United States, 527 U. S. 1, 9 (1999); see also, e.g., Pope v. Illinois, 481 U. S. 497, 503–504 (1987) (remanding for harmless-error analysis after holding that jury instruction misstated obscenity standard). And the Third Circuit has previously upheld convictions where erroneous jury instructions proved harmless. See, e.g., United States v. Saybolt, 577 F. 3d 195, 206–207 (2009). It should be given the chance to address that possibility here.
SUPREME COURT OF THE UNITED STATES
ANTHONY DOUGLAS ELONIS, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the third circuit
Justice Thomas, dissenting.
We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prosecutions under 18 U. S. C. §875(c). Save two, every Circuit to have considered the issue—11 in total—has held that this provision demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context. The outliers are the Ninth and Tenth Circuits, which have concluded that proof of an intent to threaten was necessary for conviction. Adopting the minority position, Elonis urges us to hold that §875(c) and the First Amendment require proof of an intent to threaten. The Government in turn advocates a general-intent approach.
Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for §875(c). All they know after today’s decision is that a requirement of general intent will not do. But they can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough. See ante, at 16–17.
This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent. Although I am sympathetic to my colleagues’ policy concerns about the risks associated with threat prosecutions, the answer to such fears is not to discard our traditional approach to state-of-mind requirements in criminal law. Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were “true threats” unprotected by the First Amendment, I would affirm the judgment below.
Enacted in 1939, §875(c) provides, “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” Because §875(c) criminalizes speech, the First Amendment requires that the term “threat” be limited to a narrow class of historically unprotected communications called “true threats.” To qualify as a true threat, a communication must be a serious expression of an intention to commit unlawful physical violence, not merely “political hyperbole”; “vehement, caustic, and sometimes unpleasantly sharp attacks”; or “vituperative, abusive, and inexact” statements. Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (internal quotation marks omitted). It also cannot be determined solely by the reaction of the recipient, but must instead be “determined by the interpretation of a reasonable recipient familiar with the context of the communication,” United States v. Darby, 37 F. 3d 1059, 1066 (CA4 1994) (emphasis added), lest histor ically protected speech be suppressed at the will of an eggshell observer, cf. Cox v. Louisiana, 379 U. S. 536, 551 (1965) (“[C]onstitutional rights may not be denied simply because of hostility to their assertion or exercise” (internal quotation marks omitted)). There is thus no dispute that, at a minimum, §875(c) requires an objective showing: The communication must be one that “a reasonable observer would construe as a true threat to another.” United States v. Jeffries, 692 F. 3d 473, 478 (CA6 2012). And there is no dispute that the posts at issue here meet that objective standard.
The only dispute in this case is about the state of mind necessary to convict Elonis for making those posts. On its face, §875(c) does not demand any particular mental state. As the Court correctly explains, the word “threat” does not itself contain a mens rea requirement. See ante, at 8–9. But because we read criminal statutes “in light of the 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, 605–606 (1994) (citation omitted). Absent such indicia, we ordinarily apply the “presumption in favor of scienter” to require only “proof of general intent—that is, that the defendant [must] posses[s] knowledge with respect to the actus reus of the crime.” Carter v. United States, 530 U. S. 255, 268 (2000).
Under this “conventional mens rea element,” “the defendant [must] know the facts that make his conduct illegal,” Staples, supra, at 605, but he need not know that those facts make his conduct illegal. It has long been settled that “the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law.” Bryan v. United States, 524 U. S. 184, 192 (1998) (internal quotation marks omitted). For instance, in Posters ‘N’ Things, Ltd. v. United States, 511 U. S. 513 (1994), the Court addressed a conviction for selling drug paraphernalia under a statute forbidding anyone to “ ‘make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia,’ ” id., at 516 (quoting 21 U. S. C. §857(a)(1) (1988 ed.)). In applying the presumption in favor of scienter, the Court concluded that “although the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs, it need not prove specific knowledge that the items are ‘drug paraphernalia’ within the meaning of the statute.” 511 U. S., at 524.
Our default rule in favor of general intent applies with full force to criminal statutes addressing speech. Well over 100 years ago, this Court considered a conviction under a federal obscenity statute that punished anyone “ ‘who shall knowingly deposit, or cause to be deposited, for mailing or delivery,’ ” any “ ‘obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character.’ ” Rosen v. United States, 161 U. S. 29, 30 (1896) (quoting Rev. Stat. §3893). In that case, as here, the defendant argued that, even if “he may have had . . . actual knowledge or notice of [the paper’s] contents” when he put it in the mail, he could not “be convicted of the offence . . . unless he knew or believed that such paper could be properly or justly characterized as obscene, lewd, and lascivious.” 161 U. S., at 41. The Court rejected that theory, concluding that if the material was actually obscene and “deposited in the mail by one who knew or had notice at the time of its contents, the offence is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails.” Ibid. As the Court explained, “Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of [the paper’s] contents, assumed the responsibility of putting it in the mails of the United States,” because “[e]very one who uses the mails of the United States for carrying papers or publications must take notice of . . . what must be deemed obscene, lewd, and lascivious.” Id., at 41–42.
This Court reaffirmed Rosen’s holding in Hamling v. United States, 418 U. S. 87 (1974), when it considered a challenge to convictions under the successor federal statute, see id., at 98, n. 8 (citing 18 U. S. C. §1461 (1970 ed.)). Relying on Rosen, the Court rejected the argument that the statute required “proof both of knowledge of the contents of the material and awareness of the obscene character of the material.” 418 U. S., at 120 (internal quotation marks omitted). In approving the jury instruction that the defendants’ “belief as to the obscenity or non-obscenity of the material is irrelevant,” the Court declined to hold “that the prosecution must prove a defendant’s knowledge of the legal status of the materials he distributes.” Id., at 120–121 (internal quotation marks omitted). To rule otherwise, the Court observed, “would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law.” Id., at 123.
Decades before §875(c)’s enactment, courts took the same approach to the first federal threat statute, which prohibited threats against the President. In 1917, Congress enacted a law punishing anyone
“who knowingly and willfully deposits or causes to be deposited for conveyance in the mail . . . any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, or who knowingly and willfully otherwise makes any such threat against the President.” Act of Feb. 14, 1917, ch. 64, 39 Stat. 919.
Courts applying this statute shortly after its enactment appeared to require proof of only general intent. In Ragansky v. United States, 253 F. 643 (CA7 1918), for instance, a Court of Appeals held that “[a] threat is knowingly made, if the maker of it comprehends the meaning of the words uttered by him,” and “is willfully made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution,” id., at 645. The court consequently rejected the defendant’s argument that he could not be convicted when his language “[c]oncededly . . . constituted such a threat” but was meant only “as a joke.” Id., at 644. Likewise, in United States v. Stobo, 251 F. 689 (Del. 1918), a District Court rejected the defendant’s objection that there was no allegation “of any facts . . . indicating any intention . . . on the part of the defendant . . . to menace the President of the United States,” id., at 693 (internal quotation marks omitted). As it explained, the defendant “is punishable under the act whether he uses the words lightly or with a set purpose to kill,” as “[t]he effect upon the minds of the hearers, who cannot read his inward thoughts, is precisely the same.” Ibid. At a minimum, there is no historical practice requiring more than general intent when a statute regulates speech.
Applying ordinary rules of statutory construction, I would read §875(c) to require proof of general intent. To “know the facts that make his conduct illegal” under §875(c), see Staples, 511 U. S., at 605, a defendant must know that he transmitted a communication in interstate or foreign commerce that contained a threat. Knowing that the communication contains a “threat”—a serious expression of an intention to engage in unlawful physical violence—does not, however, require knowing that a jury will conclude that the communication contains a threat as a matter of law. Instead, like one who mails an “obscene” publication and is prosecuted under the federal obscenity statute, a defendant prosecuted under §875(c) must know only the words used in that communication, along with their ordinary meaning in context.
General intent divides those who know the facts constituting the actus reus of this crime from those who do not. For example, someone who transmits a threat who does not know English—or who knows English, but perhaps does not know a threatening idiom—lacks the general intent required under §875(c). See Ragansky, supra, at 645 (“[A] foreigner, ignorant of the English language, repeating [threatening] words without knowledge of their meaning, may not knowingly have made a threat”). Likewise, the hapless mailman who delivers a threatening letter, ignorant of its contents, should not fear prosecution. A defendant like Elonis, however, who admits that he “knew that what [he] was saying was violent” but supposedly “just wanted to express [him]self,” App. 205, acted with the general intent required under §875(c), even if he did not know that a jury would conclude that his communication constituted a “threat” as a matter of law.
Demanding evidence only of general intent also corresponds to §875(c)’s statutory backdrop. As previously discussed, before the enactment of §875(c), courts had read the Presidential threats statute to require proof only of general intent. Given Congress’ presumptive awareness of this application of the Presidential threats statute—not to mention this Court’s similar approach in the obscenity context, see Rosen, 161 U. S., at 41–42—it is difficult to conclude that the Congress that enacted §875(c) in 1939 understood it to contain an implicit mental-state requirement apart from general intent. There is certainly no textual evidence to support this conclusion. If anything, the text supports the opposite inference, as §875(c), unlike the Presidential threats statute, contains no reference to knowledge or willfulness. Nothing in the statute suggests that Congress departed from the “conventional mens rea element” of general intent, Staples, supra, at 605; I would not impose a higher mental-state requirement here.
The majority refuses to apply these ordinary background principles. Instead, it casts my application of general intent as a negligence standard disfavored in the criminal law. Ante, at 13–16. But that characterization misses the mark. Requiring general intent in this context is not the same as requiring mere negligence. Like the mental-state requirements adopted in many of the cases cited by the Court, general intent under §875(c) prevents a defendant from being convicted on the basis of any fact beyond his awareness. See, e.g., United States v. X-Citement Video, Inc., 513 U. S. 64, 73 (1994) (knowledge of age of persons depicted in explicit materials); Staples, supra, at 614–615 (knowledge of firing capability of weapon); Morissette v. United States, 342 U. S. 246, 270–271 (1952) (knowledge that property belonged to another). In other words, the defendant must know—not merely be reckless or negligent with respect to the fact—that he is committing the acts that constitute the actus reus of the offense.
But general intent requires no mental state (not even a negligent one) concerning the “fact” that certain words meet the legal definition of a threat. That approach is particularly appropriate where, as here, that legal status is determined by a jury’s application of the legal standard of a “threat” to the contents of a communication. And convicting a defendant despite his ignorance of the legal—or objective—status of his conduct does not mean that he is being punished for negligent conduct. By way of example, a defendant who is convicted of murder despite claim ing that he acted in self-defense has not been penalized under a negligence standard merely because he does not know that the jury will reject his argument that his “belief in the necessity of using force to prevent harm to himself [was] a reasonable one.” See 2 W. LaFave, Substantive Criminal Law §10.4(c), p. 147 (2d ed. 2003).
The Court apparently does not believe that our traditional approach to the federal obscenity statute involved a negligence standard. It asserts that Hamling “approved a state court’s conclusion that requiring a defendant to know the character of the material incorporated a ‘vital element of scienter’ so that ‘not innocent but calculated purveyance of filth . . . is exorcised.’ ” Ante, at 15 (quoting Hamling, 418 U. S., at 122 (in turn quoting Mishkin v. New York, 383 U. S. 502, 510 (1966)). According to the Court, the mental state approved in Hamling thus “turns on whether a defendant knew the character of what was sent, not simply its contents and context.” Ante, at 15. It is unclear what the Court means by its distinction between “character” and “contents and context.” “Character” cannot mean legal obscenity, as Hamling rejected the argument that a defendant must have “awareness of the obscene character of the material.” 418 U. S., at 120 (internal quotation marks omitted). Moreover, this discussion was not part of Hamling’s holding, which was primarily a reaffirmation of Rosen. See 418 U. S., at 120–121; see also Posters ’N’ Things, 511 U. S., at 524–525 (characterizing Hamling as holding that a “statute prohibiting mailing of obscene materials does not require proof that [the] defendant knew the materials at issue met the legal definition of ‘obscenity’ ”).
The majority’s treatment of Rosen is even less persuasive. To shore up its position, it asserts that the critical portion of Rosen rejected an “ ‘ignorance of the law’ defense,” and claims that “no such contention is at issue here.” Ante, at 15. But the thrust of Elonis’ challenge is that a §875(c) conviction cannot stand if the defendant’s subjective belief of what constitutes a “threat” differs from that of a reasonable jury. That is akin to the argument the defendant made—and lost—in Rosen. That defendant insisted that he could not be convicted for mailing the paper “unless he knew or believed that such paper could be properly or justly characterized as obscene.” 161 U. S., at 41. The Court, however, held that the Government did not need to show that the defendant “regard[ed] the paper as one that the statute forbade to be carried in the mails,” because the obscene character of the material did not “depend upon the opinion or belief of the person who . . . assumed the responsibility of putting it in the mails.” Ibid. The majority’s muddying of the waters cannot obscure the fact that today’s decision is irreconcilable with Rosen and Hamling.
The majority today at least refrains from requiring an intent to threaten for §875(c) convictions, as Elonis asks us to do. Elonis contends that proof of a defendant’s intent to put the recipient of a threat in fear is necessary for conviction, but that element cannot be found within the statutory text. “[W]e ordinarily resist reading words or elements into a statute that do not appear on its face,” including elements similar to the one Elonis proposes. E.g., Bates v. United States, 522 U. S. 23, 29 (1997) (declining to read an “intent to defraud” element into a criminal statute). As the majority correctly explains, nothing in the text of §875(c) itself requires proof of an intent to threaten. See ante, at 8–9. The absence of such a requirement is significant, as Congress knows how to require a heightened mens rea in the context of threat offenses. See §875(b) (providing for the punishment of “[w]hoever, with intent to extort . . . , transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another”); see also §119 (providing for the punishment of “[w]hoever knowingly makes restricted personal information about [certain officials] . . . publicly available . . . with the intent to threaten”).
Elonis nonetheless suggests that an intent-to-threaten element is necessary in order to avoid the risk of punishing innocent conduct. But there is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat. For instance, a high-school student who sends a letter to his principal stating that he will massacre his classmates with a machine gun, even if he intended the letter as a joke, cannot fairly be described as engaging in innocent conduct. But see ante, at 4–5, 16 (concluding that Elonis’ conviction under §875(c) for discussing a plan to “ ‘initiate the most heinous school shooting ever imagined’ ” against “ ‘a Kindergarten class’ ” cannot stand without proof of some unspecified heightened mental state).
Elonis also insists that we read an intent-to-threaten element into §875(c) in light of the First Amendment. But our practice of construing statutes “to avoid constitutional questions . . . is not a license for the judiciary to rewrite language enacted by the legislature,” Salinas v. United States, 522 U. S. 52, 59–60 (1997) (internal quotation marks omitted), and ordinary background principles of criminal law do not support rewriting §875(c) to include an intent-to-threaten requirement. We have not altered our traditional approach to mens rea for other constitutional provisions. See, e.g., Dean v. United States, 556 U. S. 568, 572–574 (2009) (refusing to read an intent-to-discharge-the-firearm element into a mandatory minimum provision concerning the discharge of a firearm during a particular crime). The First Amendment should be treated no differently.
In light of my conclusion that Elonis was properly convicted under the requirements of §875(c), I must address his argument that his threatening posts were nevertheless protected by the First Amendment.
Elonis does not contend that threats are constitutionally protected speech, nor could he: “From 1791 to the present, . . . our society . . . has permitted restrictions upon the content of speech in a few limited areas,” true threats being one of them. R. A. V. v. St. Paul, 505 U. S. 377, 382–383 (1992); see id., at 388. Instead, Elonis claims that only intentional threats fall within this particular historical exception.
If it were clear that intentional threats alone have been punished in our Nation since 1791, I would be inclined to agree. But that is the not the case. Although the Federal Government apparently did not get into the business of regulating threats until 1917, the States have been doing so since the late 18th and early 19th centuries. See, e.g., 1795 N. J. Laws p. 108; Ill. Rev. Code of Laws, Crim. Code §108 (1827) (1827 Ill. Crim. Code); 1832 Fla. Laws pp. 68–69. And that practice continued even after the States amended their constitutions to include speech protections similar to those in the First Amendment. See, e.g., Fla. Const., Art. I, §5 (1838); Ill. Const., Art. VIII, §22 (1818), Mich. Const., Art. I, §7 (1835); N. J. Const., Art. I, §5 (1844); J. Hood, Index of Colonial and State Laws of New Jersey 1203, 1235, 1257, 1265 (1905); 1 Ill. Stat., ch. 30, div. 9, §31 (3d ed. 1873). State practice thus provides at least some evidence of the original meaning of the phrase “freedom of speech” in the First Amendment. See Roth v. United States, 354 U. S. 476, 481–483 (1957) (engaging in a similar inquiry with respect to obscenity).
Shortly after the founding, several States and Territo ries enacted laws making it a crime to “knowingly send or deliver any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, . . . threatening to maim, wound, kill or murder any person, or to burn his or her [property], though no money, goods or chattels, or other valuable thing shall be demanded,” e.g., 1795 N. J. Laws §57, at 108; see also, e.g., 1816 Ga. Laws p. 178; 1816 Mich. Territory Laws p. 128; 1827 Ill. Crim. Code §108; 1832 Fla. Laws, at 68–69. These laws appear to be the closest early analogue to §875(c), as they penalize transmitting a communication containing a threat without proof of a demand to extort something from the victim. Threat provisions explicitly requiring proof of a specific “intent to extort” appeared alongside these laws, see, e.g., 1795 N. J. Laws §57, at 108, but those provisions are simply the predecessors to §875(b) and §875(d), which likewise expressly contain an intent-to-extort requirement.
The laws without that extortion requirement were copies of a 1754 English threat statute subject to only a general-intent requirement. The statute made it a capital offense to “knowingly send any Letter without any Name subscribed thereto, or signed with a fictitious Name . . . threatening to kill or murder any of his Majesty’s Subject or Subjects, or to burn their [property], though no Money or Venison or other valuable Thing shall be demanded.” 27 Geo. II, ch. 15, in 7 Eng. Stat. at Large 61 (1754); see also 4 W. Blackstone, Commentaries on the Laws of England 144 (1768) (describing this statute). Early English decisions applying this threat statute indicated that the appropriate mental state was general intent. In King v. Girdwood, 1 Leach 142, 168 Eng. Rep. 173 (K. B. 1776), for example, the trial court instructed the jurors that, “if they were of opinion that” the “terms of the letter conveyed an actual threat to kill or murder,” “and that the prisoner knew the contents of it, they ought to find him guilty; but that if they thought he did not know the contents, or that the words might import any thing less than to kill or murder, they ought to acquit,” id., at 143, 168 Eng. Rep., at 173. On appeal following conviction, the judges “thought that the case had been properly left to the Jury.” Ibid., 168 Eng. Rep., at 174. Other cases likewise appeared to consider only the import of the letter’s language, not the intent of its sender. See, e.g., Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K. B. 1831) (concluding that an indictment was sufficient because “th[e] letter very plainly conveys a threat to kill and murder” and “[n]o one who received it could have any doubt as to what the writer meant to threaten”); see also 2 E. East, A Treatise of the Pleas of the Crown 1116 (1806) (discussing Jepson and Springett’s Case, in which the judges disagreed over whether “the letter must be understood as . . . importing a threat” and whether that was “a necessary construction”).
Unsurprisingly, these early English cases were well known in the legal world of the 19th century United States. For instance, Nathan Dane’s A General Abridgement of American Law—“a necessary adjunct to the library of every American lawyer of distinction,” 1 C. Warren, History of the Harvard Law School and of Early Legal Conditions in America 414 (1908)—discussed the English threat statute and summarized decisions such as Girdwood. 7 N. Dane, A General Abridgement of American Law 31–32 (1824). And as this Court long ago recognized, “It is doubtless true . . . that where English statutes . . . have been adopted into our own legislation; the known and settled construction of those statutes by courts of law, has been considered as silently incorporated into the acts, or has been received with all the weight of authority.” Pennock v. Dialogue, 2 Pet. 1, 18 (1829); see also, e.g., Commonwealth v. Burdick, 2 Pa. 163, 164 (1846) (considering English cases persuasive authority in interpreting similar state statute creating the offense of obtaining property through false pretenses). In short, there is good reason to believe that States bound by their own Constitutions to protect freedom of speech long ago enacted general-intent threat statutes.
Elonis disputes this historical analysis on two grounds, but neither is persuasive. He first points to a treatise stating that the 1754 English statute was “levelled against such whose intention it was, (by writing such letters, either without names or in fictitious names,) to conceal themselves from the knowledge of the party threatened, that they might obtain their object by creating terror in [the victim’s] mind.” 2 W. Russell & D. Davis, A Treatise on Crimes & Misdemeanors 1845 (1st Am. ed. 1824). But the fact that the ordinary prosecution under this provision involved a defendant who intended to cause fear does not mean that such a mental state was required as a matter of law. After all, §875(c) is frequently deployed against people who wanted to cause their victims fear, but that fact does not answer the legal question presented in this case. See, e.g., United States v. Sutcliffe, 505 F. 3d 944, 952 (CA9 2007); see also Tr. of Oral Arg. 53 (counsel for the Government noting that “I think Congress would well have understood that the majority of these cases probably [involved] people who intended to threaten”).
Elonis also cobbles together an assortment of older American authorities to prove his point, but they fail to stand up to close scrutiny. Two of his cases address the offense of breaching the peace, Ware v. Loveridge, 75 Mich. 488, 490–493, 42 N. W. 997, 998 (1889); State v. Benedict, 11 Vt. 236, 239 (1839), which is insufficiently similar to the offense criminalized in §875(c) to be of much use. Another involves a prosecution under a blackmailing statute similar to §875(b) and §875(c) in that it expressly required an “intent to extort.” Norris v. State, 95 Ind. 73, 74 (1884). And his treatises do not clearly distinguish between the offense of making threats with the intent to extort and the offense of sending threatening letters without such a requirement in their discussions of threat statutes, making it difficult to draw strong inferences about the latter category. See 2 J. Bishop, Commentaries on the Criminal Law §1201, p. 664, and nn. 5–6 (1877); 2 J. Bishop, Commentaries on the Law of Criminal Procedure §975, p. 546 (1866); 25 The American and English Encyclopædia of Law 1073 (C. Williams ed. 1894).
Two of Elonis’ cases appear to discuss an offense of sending a threatening letter without an intent to extort, but even these fail to make his point. One notes in passing that character evidence is admissible “to prove guilty knowledge of the defendant, when that is an essential element of the crime; that is, the quo animo, the intent or design,” and offers as an example that in the context of “sending a threatening letter, . . . prior and subsequent letters to the same person are competent in order to show the intent and meaning of the particular letter in question.” State v. Graham, 121 N. C. 623, 627, 28 S. E. 409, 409 (1897). But it is unclear from that statement whether that court thought an intent to threaten was required, especially as the case it cited for this proposition—Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K. B. 1831)—supports a general-intent approach. The other case Elonis cites involves a statutory provision that had been judicially limited to “ ‘pertain to one or the other acts which are denounced by the statute,’ ” namely, terroristic activities carried out by the Ku Klux Klan. Commonwealth v. Morton, 140 Ky. 628, 630, 131 S. W. 506, 507 (1910) (quoting Commonwealth v. Patrick, 127 Ky. 473, 478, 105 S. W. 981, 982 (1907)). That case thus provides scant historical support for Elonis’ position.
Elonis also insists that our precedents require a mental state of intent when it comes to threat prosecutions under §875(c), primarily relying on Watts, 394 U. S. 705, and Virginia v. Black, 538 U. S. 343 (2003). Neither of those decisions, however, addresses whether the First Amendment requires a particular mental state for threat prosecutions.
As Elonis admits, Watts expressly declined to address the mental state required under the First Amendment for a “true threat.” See 394 U. S., at 707–708. True, the Court in Watts noted “grave doubts” about Raganksy’s construction of “willfully” in the presidential threats statute. 394 U. S., at 707–708. But “grave doubts” do not make a holding, and that stray statement in Watts is entitled to no precedential force. If anything, Watts continued the long tradition of focusing on objective criteria in evaluating the mental requirement. See ibid.
The Court’s fractured opinion in Black likewise says little about whether an intent-to-threaten requirement is constitutionally mandated here. Black concerned a Virginia cross-burning law that expressly required “ ‘an intent to intimidate a person or group of persons,’ ” 538 U. S., at 347 (quoting Va. Code Ann. §18.2–423 (1996)), and the Court thus had no occasion to decide whether such an element was necessary in threat provisions silent on the matter. Moreover, the focus of the Black decision was on the statutory presumption that “any cross burning [w]as prima facie evidence of intent to intimidate.” 538 U. S., at 347–348. A majority of the Court concluded that this presumption failed to distinguish unprotected threats from protected speech because it might allow convictions “based solely on the fact of cross burning itself,” including cross burnings in a play or at a political rally. Id., at 365–366 (plurality opinion); id., at 386 (Souter, J., concurring in judgment in part and dissenting in part) (“The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression”). The objective standard for threats under §875(c), however, helps to avoid this problem by “forc[ing] jurors to examine the circumstances in which a statement is made.” Jeffries, 692 F. 3d, at 480.
In addition to requiring a departure from our precedents, adopting Elonis’ view would make threats one of the most protected categories of unprotected speech, thereby sowing tension throughout our First Amendment doctrine. We generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech. For instance, the Court has indicated that a legislature may constitutionally prohibit “ ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction,” Cohen v. California, 403 U. S. 15, 20 (1971)—without proof of an intent to provoke a violent reaction. Because the definition of “fighting words” turns on how the “ordinary citizen” would react to the language, ibid., this Court has observed that a defendant may be guilty of a breach of the peace if he “makes statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended,” and that the punishment of such statements “as a criminal act would raise no question under [the Constitution],” Cantwell v. Connecticut, 310 U. S. 296, 309–310 (1940); see also Chaplinsky v. New Hampshire, 315 U. S. 568, 572–573 (1942) (rejecting a First Amendment challenge to a general-intent construction of a state statute punishing “ ‘fighting’ words”); State v. Chaplinsky, 91 N. H. 310, 318, 18 A. 2d 754, 758 (1941) (“[T]he only intent required for conviction . . . was an intent to speak the words”). The Court has similarly held that a defendant may be convicted of mailing obscenity under the First Amendment with- out proof that he knew the materials were legally obscene. Hamling, 418 U. S., at 120–124. And our precedents allow liability in tort for false statements about private persons on matters of private concern even if the speaker acted negligently with respect to the falsity of those statements. See Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 770, 773–775 (1986). I see no reason why we should give threats pride of place among unprotected speech.
* * *
There is always a risk that a criminal threat statute may be deployed by the Government to suppress legitimate speech. But the proper response to that risk is to adhere to our traditional rule that only a narrow class of true threats, historically unprotected, may be constitutionally proscribed.
The solution is not to abandon a mental-state requirement compelled by text, history, and precedent. Not only does such a decision warp our traditional approach to mens rea, it results in an arbitrary distinction between threats and other forms of unprotected speech. Had Elonis mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or reck- lessly disregarded that possibility. Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant. That need not—and should not—be the case.
Nor should it be the case that we cast aside the mental-state requirement compelled by our precedents yet offer nothing in its place. Our job is to decide questions, not create them. Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today’s decision rests.
I respectfully dissent.
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