True threats on social media will be prosecuted

Barbara McQuade

We have seen a recent uptick in threats on social media targeting a variety of groups and individuals, including police officers, minorities and immigrant groups. While our offices stand ready to prosecute threats where the law permits, not every threat is prosecutable.

The First Amendment protects free speech, regardless of whether that speech is unkind, aggressive or even hateful. But threats are different.

Threats intimidate victims, instilling a fear of violence. Moreover, threats have consequences beyond the fear they induce. For example, threats to kill police officers undermine respect for the public servants who risk their lives to protect public safety. Threats may even incite violence in an already volatile climate. For these reasons, we are always prepared to prosecute true threats against police officers or other groups and individuals.

But what is a “true” threat? Under recent Supreme Court case law, “true threats” are statements in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals with knowledge that the communication will be viewed as a threat. The context and specificity of the threat are important considerations in determining the person’s intent. Depending on the circumstances, statements like “let’s kill all police officers” may not amount to a prosecutable threat.

A recent example of a prosecuted true threat involved statements on a social media thread about recent police-involved deaths. The defendant initially wrote “kill all cops on sight,” and later specified that he was going to “kill and behead” a specific police officer who was identified by name. Throughout the thread on a public social media site, the defendant wrote other statements underscoring the seriousness of his intent.

That example met the legal standard of a true threat because, first, the writer communicated a serious expression of intent to commit an act of unlawful violence by killing and beheading. Second, he identified an individual target by name. Third, the defendant’s other statements expressed his knowledge that the threat would be viewed as a threat.

The language of the threat alone is often not the only consideration in deciding whether to prosecute a case. Someone who communicates a threat will usually receive a visit from law enforcement investigators to determine whether the person has the ability or intent to act on the threat, whether the person is a danger to the community and whether the person suffers from any mental illness. When social media is involved, we must also determine whether the threat was communicated in a particular geographic venue.

Social media gives people the ability to reach large audiences, and the First Amendment gives them the right to express their views. But just as someone cannot yell “fire” in a crowded theater, social media also has its limits. We are committed to thoroughly investigating and prosecuting those who cross the line.

Barbara McQuade is the United States attorney for the Eastern District of Michigan. Kym Worthy is the Wayne County prosecutor.