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I recently read a bunch of stories about people making shooting/bomb threats on the internet and being arrested for it. These are often written in a matter-of-fact way.

But I know I have also seen people also make death threats in a joking context, and I am just wondering if even these people are putting themselves at a great risk, were the FBI contacted.

For example,

If someone tweets, "Found an olive in my subway sandwich, gonna go [COMMIT CRIME TO SUBWAY]."

What about something like this which I remember seeing?

Or what about death threats to individuals? I know people, especially women, talk about getting death/rape threats online. Would the police actually do anything about these cases, if it's a person being threatened and not a school or other building?

Jonas432
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2 Answers2

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I don't think there is any way to determine the magnitude of the risk. It is certainly a federal crime – 18 USC 875(c). The FBI doesn't publicly disavow the possibility of an investigation in cases that you might think are hyperbolic speech. There is the case of Elonis v. US, who was investigated and prosecuted for "making threats" – focusing on the statutory language

transmits in interstate or foreign commerce any communication containing any threat

Defendant argued that threat "conveys the notion of an intent to inflict harm", but the court disagreed with both prosecution and defense w.r.t. a mental state requirement in the statute. The court explores various scienter requirements, and concludes that there is a mens rea component to the crime (this is not a strict liability crime). The basis for the appeal is that defendant wanted an jury instruction read saying that "the government must prove that he intended to communicate a true threat", and what the jury was told was that

A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual

The court rejected importation of the negligence-law "reasonable person" standard, when the question for criminal law should be "awareness". The standard for conviction is that "wrongdoing must be conscious to be criminal".

As for investigations, law enforcement can investigate the possibility that a literal threat corresponds to an awareness in the utterer's mind that this is a real threat. When the prosecution makes the case in court, they would have to prove beyond reasonable doubt that in the defendant's mind, he intended to make a true threat. Based on the snippet that you posted, there is reasonable doubt as to there being a true threat.

Dale M
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user6726
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  • "When the prosecution makes the case in court, they would have to prove beyond reasonable doubt that in the defendant's mind, he intended to make a true threat."

    That contradicts the jury instruction you just quoted!!

     – deep64blue Nov 21 '22 at 12:57
  • @deep64blue The jury instruction refers to point of fact that they're determining reasonable doubt of. I.e. do they have reasonable doubt that a reasonable person would ...? – Barmar Nov 21 '22 at 15:12
  • Indeed but the answer says the Prosecution has to prove what was in the defendants mind but the instructions say it's whats in mind of the recipients of the message. – deep64blue Nov 21 '22 at 19:08
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    SCOTUS tossed out the conviction because the jury didn't take into account "Elonis's intentions", which is an entirely untenable ruling. The only person who can state the intention is, by necessity, strongly incentivized to deny the truth of their intentions. This would essentially make it impossible to convict death threats. SCOTUS's decision has effectively de-toothed the law in more ways than one. This ruling also undermines the law's protective purpose as intent must be confessed and confirmed before any mitigating response can be taken between threat and lethal conclusion. – Skek Tek Nov 21 '22 at 20:13
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Those people are putting themselves at the risk that their threats, even implied, will be viewed seriously.

In October 2022, the police interrogated a person making threats online. On a Facebook event for a public gathering, that person commented "at least I know where to go with a submachine gun thanks".

The police Facebook page wrote about this:

Yesterday he wrote a hateful comment on a social network. Today, he sat in for questioning at the Department of Extremism and Terrorism of the Prague Police. He faces up to a year in prison for violence against a group of people and individuals.

Petr Hudeček
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