Was Cruz Subject to Arrest in This Case?

The Court [Elonis vs. US] noted that had Elonis typed these words out and “snailmailed” them to his ex-wife, it would almost certainly constitute a criminal threat, because it was made directly to the intended victim and thus counts as evidence of mens rea. (The Court didn’t use the term “snailmail”, of course—and referred to Facebook as a “social networking Web site.”) Presumably, if the text was emailed—or maybe direct-messaged?—it would also, thus, be a criminal threat. The Court itself didn’t go to the First Amendment protections, it instead basing its ruling purely on the federal criminal statute. 18 US Code, various paragraphs.

Most crimes require what attorneys refer to as "mens rea," which is simply Latin for a "guilty mind." In other words, what a defendant was thinking and what the defendant intended when the crime was committed. Mens rea allows the criminal justice system to differentiate between someone who did not mean to commit a crime and someone who intentionally set out to commit a crime.

The US Supreme Court disagreed and overturned the decision 7-2. Threatening language is not enough. Targets feeling threatened is not enough. Criminal law requires mens rea, an “evil mind,” and in this case, the Court held that there must be some specific intention to threaten. Since that wasn’t established in this case (and since Elonis assiduously denied having it) the Court threw out his conviction.

Would the Cruz threats have been sufficient to establish a specific intention to threaten? How about this, arrest his ass and let POTUS decide. Hell, if you squirrels have no more nuts than to send Martha Stewart to prison and not Cruz, you are even more evil than Cruz!