Prosecuting Online Threats After Elonis

In Elonis v. United States, decided last term, the Supreme Court vacated a conviction for online threats on the ground that the lower court erred in its instructions to the jury regarding mens rea. In doing so, however, the Court declined to articulate which mens rea standard would have sustained a conviction. It is thus currently uncertain which mens rea the government must prove when prosecuting online threats under 18 U.S.C. § 875(c). The Elonis Court discussed three potential mens rea standards; as universal standards for online threats, each leaves something to be desired.

Fortunately, federal courts need not decide which standard is best for all online threats. Instead, they should adopt libel law’s distinction between public and private targets, and similarly apply a heightened mens rea standard when the threatening speech at issue targets public figures (or implicates “broader public issues”). It won’t always be easy, but drawing this distinction will allow courts to achieve the best balance between freedom-of-speech values and the need to prevent intense psychological harm.