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Why Did Elonis Take Six Months?

Elonis v. United States, the subject of two earlier posts today, was argued December 1, 2014, and decided today, exactly six months later.  The actual decision is only that the "reasonable person" test for what is a threat, in use in all but two of the federal circuits, is insufficient as a matter of statutory interpretation.  The actual test is undecided.  The requirements of the First Amendment in this area are undecided.

And this took you six months to write, Mr. Chief Justice?

No, of course it didn't.  The Court is famously secretive about its internal deliberations, but I just have to believe that something far more significant had been the subject of much debate, but the author of that broader opinion could not put together a majority for it.  So, perhaps the decision was that a narrow but controlling opinion that does not settle enough is better than a fractured multi-opinion decision that leaves everyone scratching their heads and perhaps settles nothing at all.

I don't think it was that hard a case.  The widely accepted "default" rule of interpretation from the Model Penal Code* is that when a criminal statute has no express mental element, then either purpose, knowledge, or recklessness will do.  Given that the Court has resolved long ago that recklessness is sufficient for First Amendment purposes, even in criminal cases (Garrison v. Louisiana (1964), cited in my brief and Justice Alito's opinion), the doctrine of constitutional avoidance provides no basis for deviating from the standard rule.

If the Court really feels it needs more briefing on this point, it should grant rehearing (whether the Government asks it to or not), take more briefing, and schedule reargument for next October.
* "When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto."  Model Penal Code ยง2.02(2)(c) (American Law Institute 1985).


Any chance that Congress will amend the statute to insert the mens rea element that believe was originally intended?

Your guess is as good as mine.

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