Subjective test means the defendant in his mind meant to make a threat with the

Subjective test means the defendant in his mind meant

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-Subjective test means the defendant, in his mind, meant to make a threat with the statements -Objective test ] -Use of only reasonable person is the same as negligence, which is not criminal action -In order to be convicted, Elonis must know the threatening nature
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- -The court will not decide whether recklessness or something more is needed *Clicker -If it is not raised in the lower courts, if is generally waived Alito -Agrees that a mental state is required -Believes the failure to give the mental state will cause confusion and problems for lower courts -The parties did raise the issue during the appeal -Court should decide based on that or order additional briefing by the parties -Alito would find recklessness enough -When congress does not provide a mental state, recklessness should be all that is needed -Elonis can be convicted if he consciously disregards a risk the communication will be viewed as a threat -That standard would not violate the 1 st amendment - (1) Making the threat, whether intended as a threat or not , causes the same harm -(2) Context matters when looking at threats -The statements here were pointedly directed toward particular people and therefore more likely to be taken seriously -Would remand to decide if recklessness was met here, or if Elonis’s failure to argue under the recklessness standard allows the conviction to remain or if the error was harmless -Harmless error is one that, even if it had not been made would not have changed the verdict Thomas -Would find a general intent requirement -Under that standard, the conviction would stand -Agrees there needs to be an objective showing -In this case, the general intent is only that he has knowledge of the acts that make a crime, no that the facts make the conduct illegal -Knowing that the communication contains a threat does not require that he knows he will be found guilty of that crime -He needs only know the words used in the communication and their ordinary meaning -Will not catch innocent conduct (postman delivering it, those who don’t know the language)
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-The ordinary rule is that the court doesn’t read words into statutes -Congress knows how to include a higher mental state if it chose to -His conviction doesn’t violate the 1 st Amendment either -If only intentional threats (from defendant’s viewpoint) were the rule, then it would be the most unprotected category of speech -Anyone could escape conviction by saying they didn’t mean it Elonis II Same Facts -Now back at the 3 rd Circuit to set a mens rea standard and remand for a new trial Issue -What mental state is required? -Was there harmless error in the instruction? Holding -Doesn’t decide mental state -Under recklessness or more stringent standard, the error was harmless Reasoning -For a subjective standard, need to intend to communicate a threat or know that the target would view it as a threat -As against his wife, she had taken out a restraining order based on his previous posts -He knew of the restraining order because he was at court that day
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