Elonis v. United States and the Mens Rea Debate

Originally published at National Review by Jonathan Keim | June 3, 2015

On Monday the Supreme Court did something interesting in Elonis v. United States, a case about the interstate threat statute and its application to Facebook status messages. Although widely viewed as a case with great significance for the First Amendment’s application to social networking, the Court sidestepped the constitutional question and dove straight for the overcriminalization issue: default mens rea. A 7-2 majority lined up behind the Chief Justice to strike down the conviction, with Justices Thomas and Alito writing separately.

Mens rea – the criminal law’s requirement of a guilty mind – is usually the sine qua non of a typical criminal offense. In most cases, the mens rea is the difference between a tort and a crime: Negligently hitting someone with a baseball bat might subject you to money damages from the victim, but you won’t go to jail unless you fight the sheriff who comes to attach your car (or home) to pay the judgment. If you hit the victim knowingly or intentionally, however, you’ll probably go to jail. Of course, the lines between criminal and non-criminal acts are somewhat blurrier in practice. Some statutes create “strict liability” crimes, which require no proof whatsoever of a guilty mind, while others penalize various types of accidents. 

Elonis was originally briefed with two questions in mind (one statutory, one constitutional) about what mens rea attaches to the interstate threat. The two questions presented focused on whether a subjective intent to threaten is necessary for a conviction under 18 U.S.C. § 875(c). The defendant argued that the meaning of the word “threat” implies an intentional act and that in any event, Virginia v. Black (2003) requires the charged communication to be a “true threat.” The government responded that the statute doesn’t state a mental state with respect to the nature of the threat, so it should be construed as imposing a much lower standard than several similar statutes.

The majority (with the Chief writing) tossed the conviction, rejecting the government’s statutory argument that the mens rea for the crime was strict liability or negligence (citations omitted):

We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal.” As Justice Jackson explained, this principle is “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Although there are exceptions, the “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” We therefore generally “interpret[] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.”

This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim “ignorance of the law is no excuse” typically holds true. Instead, our cases have explained that a defendant generally must “know the facts that make his conduct fit the definition of the offense,” even if he does not know that those facts give rise to a crime.


Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct— awareness of some wrongdoing.” Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks— “reduces culpability on the all-important element of the crime to negligence,” and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes.” Under these principles, “what [Elonis] thinks” does matter.

Though the majority rejected negligence as the mens rea, the Court stopped short of specifying what mens rea was the right one. Justice Alito objected to this omission, concurring with the majority’s reasoning but dissenting from its refusal to establish “recklessness” as the appropriate standard. On this point, Justice Alito agreed with Justice Thomas’s dissent that “recklessness” was both a constitutionally permissible mens rea under the First Amendment for this case and the proper minimum mens rea under the case law. Justice Thomas likewise criticized the majority’s failure to articulate the applicable standard, but directed most of his vigorous dissent at the majority’s articulation of the appropriate common law background standards.

Elonis is more important for what it leaves open than what it resolves. The Court didn’t supply an answer to what minimum mens rea would apply generally to federal criminal statutes under the background principles for interpretation of criminal statutes. This leaves the door wide open for Congress to pick up where the Court left off and pass its own default mens rea statute. In that respect, Elonis leaves primary responsibility for scaling back the mens rea problem right where it should be: Congress.