Cite as: 575 U. S. ____ (2015)
11
THOMAS, J., dissenting
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 punish
ing 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 imag
ined’ ” against “ ‘a Kindergarten class’ ” cannot stand with
out 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.
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