SCOTUS Grants Cert In Elonis, Adds A Statutory Out

The Supreme Court today granted cert in Elonis v. United States. It didn't grant the case entirely on the parties' terms, however, and instead added an additional Question Presented. Here's the petitioner's version of the Question Presented:

It is a federal crime to “transmit[] in interstate or foreign commerce any communication containing * * * any threat to injure the person of another,” 18 U.S.C. § 875(c). Numerous states have adopted analogous crimes. The question presented is: 

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

As contemplated by the petitioner, Elonis was therefore a First Amendment challenge to petitioner's conviction. The Court added this question:

Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten.

The Court thus gave itself a way to resolve the case in petitioner's favor without needing to address the constitutional question. This should be a fun case to watch. Petitioner is represented by John Elwood, an experienced SCOTUS practitioner and partner at Vinson & Elkins, so we can expect that the briefing and argument will be excellent.