When is a Threat, a Threat?
In some cases of mass shootings, especially those that occur in a school environment, there are often declarations of intent, if not actual threats, that are communicated either to other individuals or on a social-media platform, such Facebook, Instagram or YouTube.
When that happens, it often becomes clear that others knew of the threats, which were in most cases publicly communicated, and either failed to share that warning, or did so, and those to whom the threats were communicated failed to take appropriate action. Unfortunately, in an environment where many people toss out threats which they later claim they “didn’t mean,” sorting out the wheat – the true threats – from the chaff is a Herculean task for often-overburdened law enforcement agencies.
When an individual, especially a juvenile, makes such threats, what can be done? Most of the earlier case law on the issue of what constitutes a communicated threat were decided long before the use of social media became both simple and widespread. These cases focused on the nature of the threat and distinguished between those that were direct, indirect or veiled.
In U.S. v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997), decided prior to the common use of social media, two men, one in the U.S. (Abraham Alkhabaz) and one on Canada, communicated via email expressing an interest in extreme sexual violence toward females. Alkhabaz shared stories about it, culminating in posting on a public group a detailed accounting of the rape, torture and murder of a young woman with the same name as one of his classmates. He was charged under 18 U.S.C. 875(c), which reads:
Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
Following an appeal, the Sixth Circuit ruled that his statements did not constitute a true threat, as there was no intent (mens rea) combined with an action (actus rea) and as such, it dismissed his indictment. However, the ruling has been called in question by later Sixth Circuit cases, which have moved toward the position held by the dissent, which emphasized the language of the federal law, proscribing any threats communicated through interstate means.
Just three years ago, the U.S. Supreme Court ruled on Elonis v. U.S., 135 S. Ct. 2001 (2015). Anthony Elonis posted song lyrics he’d written, but that he claimed were “fictitious” and referencing his First Amendment rights, to Facebook. The language he used was considered threatening by his wife and his co-workers. He was fired, and his former employer notified the FBI of the postings. He was eventually charged with 18 U.S.C. 875(c) as well. Elonis argued it had not been proven that he shared a “true threat.” He was convicted, however, and the Third Circuit upheld that conviction. The U.S. Supreme Court ruled that the instruction given to the jury, which required only negligence rather than a higher, more affirmative standard of actual intent and an awareness of the wrongdoing of such an action, was insufficient in the criminal forum.
The most recent case from the Sixth Circuit is U.S. v. Houston, 683 Fed.Appx. 434 (6th Circ. 2017). Rocky Houston’s threats against his attorney were not communicated via social media, but personally in a phone call to his girlfriend from jail, but were very specifically death threats. As Houston was charged under the federal crime, an interstate transmission of the threat was required, but his telephone call was, by the nature of the service provided to the jail, routed out of state and then back to Tennessee, where he was incarcerated. His first case was overturned and remanded for retrial, at which time he was again convicted.
In its second ruling on the case, the Sixth Circuit addressed several important points. First, the Court agreed that although the federal statute does not provide guidance on the required mental state, it noted that Houston’s threat would have been actionable under relevant Tennessee law, had it not been interstate. His “words became criminal once he spoke them with knowledge that they would be perceived as a ‘true threat.’” The route his threats took, across state lines, were immaterial with respect to judging their threatening nature, as they would have been actionable in Tennessee as well. As such, it was unnecessary to prove that Houston had any awareness that his phone call was routed outside Tennessee.
Houston also argued that his rant was not a “true threat” as the direct recipient, his girlfriend, did not consider them so. The Court agreed that “’true threats’ enjoy no protection under the First Amendment, according to Virginia v. Black, 538 U.S. 343 (2003). Under U.S. v. Alkhabaz, a true threat is defined as “a serious expression of an intention to inflict bodily harm” that is “conveyed for the purpose of furthering some goal through the use of intimidation.” It does not, however, need to be “communicated to the targeted individual in order to constitute a ‘true threat,’” according to U.S. v. Jeffries, 692 F.3d 473 (6th Cir. 2012). In Houston’s case, the seriousness of his threat was enhanced by testimony from a prison guard who heard Houston mutter such specific threats when he was alone in his cell and that he was in an “absolute rage” at the time.
Even if the individual lacks the ability to “make good” on the threats, it can still be considered a “true threat,” according to U.S. v. Glover, 846 F.2d 339 (6th Cir. 1988).
In the past year or so, the awareness of such social-media threats, whether an action is intended or not, has skyrocketed. It is impossible for investigators to know if the poster does intend to follow through with a threat or not, and as such, every such threat must be taken seriously. Although many cases involving juveniles may not be amenable to federal prosecution, in the case of such serious threats, the possibility of federal action should always be considered and the line of communication between both federal and state/local authorities kept open to ensure that appropriate actions are taken.
