4
ELONIS v. UNITED STATES
THOMAS, J., dissenting
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, “Con
gress did not intend that the question as to the character
of the paper should depend upon the opinion or belief of
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