14
ELONIS v. UNITED STATES
Opinion of the Court
ed. 1993); Cochran v. United States, 157 U. S. 286, 294
(1895) (defendant could face “liability in a civil action for
negligence, but he could only be held criminally for an evil
intent actually existing in his mind”). Under these principles, “what [Elonis] thinks” does matter. App. 286.
The Government is at pains to characterize its position
as something other than a negligence standard, emphasizing that its approach would require proof that a defendant
“comprehended [the] contents and context” of the communication. Brief for United States 29. The Government
gives two examples of individuals who, in its view, would
lack this necessary mental state—a “foreigner, ignorant of
the English language,” who would not know the meaning
of the words at issue, or an individual mailing a sealed
envelope without knowing its contents. Ibid. But the fact
that the Government would require a defendant to actually know the words of and circumstances surrounding a
communication does not amount to a rejection of negligence. Criminal negligence standards often incorporate
“the circumstances known” to a defendant. ALI, Model
Penal Code §2.02(2)(d) (1985). See id., Comment 4, at 241;
1 LaFave, Substantive Criminal Law §5.4, at 372–373.
Courts then ask, however, whether a reasonable person
equipped with that knowledge, not the actual defendant,
would have recognized the harmfulness of his conduct.
That is precisely the Government’s position here: Elonis
can be convicted, the Government contends, if he himself
knew the contents and context of his posts, and a reasonable person would have recognized that the posts would be
read as genuine threats. That is a negligence standard.
In support of its position the Government relies most
heavily on Hamling v. United States, 418 U. S. 87 (1974).
In that case, the Court rejected the argument that individuals could be convicted of mailing obscene material
only if they knew the “legal status of the materials” distributed. Id., at 121. Absolving a defendant of liability
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