Social media and other internet communications have altered the way people communicate with one another, including the way people threaten one another. In 2015, the United States Supreme Court decided Elonis v. United States, which imposed a heightened mental state requirement for federal prosecutions of threats issued in interstate commerce. Although the statute, 18 U.S.C. § 875(c), has no mental state requirement, the Supreme Court held that, consistent with the principles of criminal law, only those with guilty minds should be convicted and thus some showing of subjective intent is required. The opinion did not name the requisite mental state, but concluded that negligence was insufficient. In addition, the opinion did not discuss the First Amendment issue at all, making it entirely unclear whether the Court thinks a heightened mental state is required by the First Amendment’s narrow exception to free speech for “true threats.” Following the opinion, the lower courts are tasked with determining both what is the appropriate mental state and determining if this mental state sufficiently protects speech under the First Amendment.

The case law surrounding Elonis reveals a bigger problem in this area: the lack of an appropriate criminal statute punishing threatening communications in a world where internet communication is increasingly frequent. Communication through social media or other internet media is different from face-to-face communication because the anonymity allows for people to say things they might not be comfortable saying in person, and the unique attributes of social media platforms (e.g. “likes,” or “retweets”) allow for a different type of communication about one’s opinions and thoughts. This Note will argue that Elonis demonstrated the current level of confusion in this area of the law and the appropriate next step is for Congress to pass legislation geared toward internet threats that is specifically tailored for social media and other internet communication and that identifies the mental state required for conviction. First, this Note explores the statute currently used to prosecute internet threats and the problems that Elonis created. Next, it addresses why the Court’s failure to explain the First Amendment’s relation to subjective intent and “true threats” further confuses an already muddled area of law. The Note then evaluates the possible mental state requirements and the academic and legal arguments regarding which is most appropriate for online threats. Finally, this Note calls for Congress to step into the online threat arena, and draft legislation that will more adequately address the unique characteristics of social media and other internet communications, and find the best way to aid law enforcement in internet threat prosecutions and protect citizens who are threatened in this new space.