Is a Threat Really a Threat if the Speaker Did Not Intend It to Be?

Today in United States v. Jeffries, the Sixth Circuit waded into the current state of the “true threat” doctrine — the doctrine that a threat cannot be punished in light of the First Amendment unless it is a serious expression of intent to engage in violence or bodily harm. Lower courts have divided over whether this test is objective or subjective. Is the question whether a reasonable person would so construe the statement, or is the question whether that particular speaker intended the statement that way? Put another way, if a speaker says something that others might reasonably take as a threat, but the speaker did not intend his message as a threat or intend it to be taken seriously by others, is it really a threat? In an opinion by Judge Sutton, the Sixth Circuit concluded that as a matter of precedent, the Sixth Circuit has adopted the objective test and is therefore bound by that test.

Judge Sutton then added a special concurring opinion in which he suggests that if he were writing on a clean slate, he might read the the federal interstate threat statute at issue in Jeffries as requiring proof of subjective intent as a matter of a statutory language:

The statute prohibits “transmit[ting] in interstate or foreign commerce any communication containing any threat to . . . injure the person of another.” 18 U.S.C. § 875(c). The key phrase is “threat . . . to injure the person of another.” The key word is “threat.”

Every relevant definition of the noun “threat” or the verb “threaten,” whether in existence when Congress passed the law (1932) or today, includes an intent component. “[T]o declare (usually conditionally) one’s intention of inflicting injury upon” a person, says one dictionary. 11 Oxford English Dictionary 352 (1st ed. 1933). “[A]n expression of an intention to inflict loss or harm on another by illegal means, esp. when effecting coercion or duress of the person threatened,” says another. Webster’s New Int’l Dictionary 2633 (2d ed. 1955). “A communicated intent to inflict harm or loss on another,” says still another. Black’s Law Dictionary 1489 (7th ed. 1999). And so on: “An expression of an intention to inflict pain, injury, evil, or punishment.” American Heritage Dictionary of the English Language 1801 (4th ed. 2000). And on: “An expression of intention to inflict something harmful.” Webster’s New College Dictionary 1149 (1995). And on: “[A] declaration of an intention or determination to inflict punishment, injury, etc., in retaliation for, or conditionally upon, some action or course.” Random House Unabridged Dictionary 1975 (2d ed. 1987).

Conspicuously missing from any of these dictionaries is an objective definition of a communicated “threat,” one that asks only how a reasonable observer would perceive the words. If words matter, I am hard pressed to understand why these definitions do not resolve today’s case. The definitions, all of them, show that subjective intent is part and parcel of the meaning of a communicated “threat” to injure another.

The history of § 875 reinforces this conclusion. The law made its first appearance in 1932, starting out only as a prohibition on extortion. It encompassed threats coupled with an intent to extort something valuable from the target of the threat. Pub. L. No. 72-274 (1932) (prohibiting a “threat” communicated “with intent to extort . . . money or other thing of value”). From the beginning, the communicated “threat” thus had a subjective component to it. Nothing changed when Congress added a new
“threat” prohibition through § 875(c) in 1939. . . .

Background norms for construing criminal statutes point in the same direction. Courts presume that intent is the required mens rea in criminal laws, Morissette v. United States, 342 U.S. 246, 250 (1952), a presumption that applies at a minimum to the
“crucial element separating legal innocence from wrongful conduct,” United States v. XCitement Video, Inc., 513 U.S. 64, 73 (1994). The crucial element of § 875(c)—what divides innocence from crime—is a threat. It is not enough that a defendant knowingly communicates something in interstate commerce; he must communicate a threat, a word that comes with a state-of-mind component. Allowing prosecutors to convict without proof of intent reduces culpability on the all-important element of the crime to negligence.

What, then, explains, all of this contrary authority? I am not sure. None of the cases addressing this issue cites, much less quotes, any dictionary definitions of “threat.” Nor do any of them mention the history of the statute, its roots in extortion or its purpose. To the extent the cases mention the presumption in favor of a mens rea for a criminal statute, they say only that this customary feature of criminal laws is answered by the requirement that the threat be knowingly communicated, not that it be subjectively threatening, even though the threat is the defining feature of the crime.

When some law-making bodies “get into grooves,” Judge Learned Hand used to say, “God save” the poor soul tasked with “get[ting] them out.” Hand, The Spirit of Liberty 241–42 (2d ed. 1954). That may be Franklin Delano Jeffries’ fate—and ours. The Department of Justice, defense lawyers and future courts may wish to confirm that the current, nearly uniform standard for applying § 875(c) is the correct one. I am inclined to think it is not.

This is a very interesting statutory argument, although I’m not sure I’m quite convinced. The difficulty is that instead of just prohibiting “threatening someone in interstate commerce,” the statute prohibits “transmitting in interstate commerce a communication containing a threat.” It’s certainly possible to treat the two as equivalent, which seems to be Judge Sutton’s approach. Perhaps the extra language just reflects an effort to establish the interstate nexus for jurisdictional purposes less awkwardly than otherwise, and so the differences should be ignored. But I think it’s also plausible to read the differences in language as important. Consider the difference between a prohibition on “insulting someone” and a prohibition on “transmitting a communication containing an insult.” The former text makes clear that the prohibition is on the direct act of insulting someone, which suggests subjective intent to insult. On the other hand, the latter text can be read as prohibiting a different and broader set of acts — transmitting a communication when the item transmitted could be construed as as insult. That’s the kind of reading that courts have taken with 875(c)’s prohibition on transmitting communications containing threats. I don’t think it’s obviously right, but I don’t think it’s obviously wrong, either.