The Atlanta Lawyer August/September 2015 | Page 37

SLIP Student Essays
when Congress fails to specify one
is recklessness, otherwise the Court
“step[s] over the line that separates
interpretation from amendment.”
Reckless conduct “regarding a risk
of serious harm” is wrongful conduct.
Convicting Elonis under such a
standard would not violate his First
Amendment Rights because threats
are not protected by the Constitution.
Justice Thomas does not agree
with the decision of the majority. He
argues that while there is always a
risk “that a criminal threat statute
may be deployed by the Government
to suppress legitimate speech,” this
risk can be mitigated by the Court’s
adherence to “their traditional rule
that only a narrow class of true
threats, historically unprotected,
may be constitutionally protected.”
Justice Thomas contends that the
Court’s job is to “decide questions,
not create them.” A mental state
requirement “compelled by” previous
precedents cannot be struck down
without anything offered “in its place.”
I largely concur with the majority.
Negligence is not a sufficient
standard and the conviction should
be overturned and remanded to the
lower courts. However, I too would
prefer if the Court had designated
a mental state requirement that
is sufficient for a conviction. I
understand that the Court has the
right to decline to answer such a
question, as it was not raised in the
court below. The majority opinion in
itself would have been more cohesive
if such a designation had been
made. The nature of recklessness
in this case is that the defendant be
aware that others would perceive
his communication as a “true threat.”
Recklessness is a sufficient mental
standard that provides the requisite
“guilty mind.”
*Maryellen Malone was a first-time Intern in the 2015 Atlanta
Bar Association Summer Law Internship Program, interning
with the Dekalb County District Attorney’s office. Her mentor
The Official News Publication of the Atlanta Bar Association

was Deputy District Attorney Darius Pattillo. Darius was a
three-time Intern during 1993-1995. Maryellen is a 2015
graduate of Pace Academy and is now attending Georgia
Tech where she is majoring in Biochemistry.
August/September 2015

THE ATLANTA LAWYER

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