Kara Sears
The First Amendment of the U.S. Constitution guarantees the right to free speech, but this right is not absolute. Criminal threats and intimidation are considered significant violations of another person's rights and often contribute to charges of other major crimes. A criminal threat involves threatening another person with physical harm or death. In many states, death threats fall under criminal threats, and some states penalize threats of serious harm or death more harshly than other threats. Threatening to blow up a building, for example, is illegal in most states and can result in felony charges.
| Characteristics | Values |
|---|---|
| Nature of threat | Threat to kill or physically harm someone else |
| Communication medium | Verbal, written, or electronic |
| Intent | To threaten or intimidate |
| Context | Threat must be understood as a threat |
| Extortion | Threat to demand something valuable |
| Defenses | First Amendment protections, lack of intent, false accusation |
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What You'll Learn
Criminal threats vs. free speech
While the US Constitution guarantees the right to free speech, this right is not absolute. There are specific limitations to free speech, such as prohibitions against slander and libel. In some situations, speech can even constitute a crime, such as in the case of criminal threats.
A criminal threat involves an individual threatening someone else with physical harm or death. To be convicted of a criminal threat, the prosecution must prove that the defendant communicated a threat of harm to another person, and that the defendant intended for the communication to be taken as a threat.
A "true threat" is a serious expression of intent to commit an act of illegal violence. True threats are not protected by the First Amendment and can be prosecuted under state and federal criminal laws. The speaker does not need to actually intend to carry out the threat, but the prosecution must prove that they intended to communicate a threat.
When deciding whether a matter is actionable, prosecutors rely heavily on Counterman v. Colorado, 600 U.S. 66 (2023). For a communication to be considered a "true threat" rather than protected free speech, prosecutors must prove two elements beyond a reasonable doubt. Firstly, that the defendant was aware of the threatening nature of their communication, and secondly, that they recklessly disregarded the risk that their words or communications would be interpreted as threatening violence.
It's important to note that the line between free speech and prosecutable threats can be complex and context-dependent. For example, in the case of Watts v. United States, an anti-Vietnam War protester was prosecuted and convicted for threatening President Lyndon B. Johnson. However, the Supreme Court ruled that the statement was a form of "political hyperbole" and did not constitute a true threat.
In summary, while criminal threats are not protected by free speech, the definition of a "true threat" is nuanced and subject to legal interpretation. The context, intent, and specific circumstances of each case play a crucial role in determining whether a statement crosses the line from free speech to a criminal threat.
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Death threats
A death threat is a threat made by an individual or a group of people to kill another person or a group of people. Death threats are often made anonymously and are designed to intimidate victims to manipulate their behaviour. They are considered a serious criminal offence in most jurisdictions and are often covered by coercion statutes. For instance, in Alaska, a person is said to commit the crime of coercion if they compel another person to engage in or abstain from engaging in conduct by instilling in them a fear of death or injury.
In the United States, threatening to kill or physically harm someone else is considered a criminal threat. Criminal threats are not protected under the right to free speech guaranteed by the Constitution. To be convicted of a criminal threat, the prosecution must prove that the defendant communicated a threat of harm to another, the defendant intended for the communication to be taken as a threat, and the threat was credible and specific so as to place a person in fear of harm. The threat can be communicated in any form, including written, verbal, electronically, or through a third person.
Individuals who communicate a threat to injure another can face federal felony charges if they use a form of interstate commerce, such as email, mail, phone calls, texts, or online messaging, to send the threat. This federal offense carries up to 5 years in federal prison. Sending such threats repeatedly can lead to federal criminal stalking charges and up to 10 years in prison. Defendants may argue that they had no intent to communicate a true threat or that their words were protected as free speech.
In some states, death threats are penalized more harshly than other threats. Additionally, threatening any government official, especially the president, is punishable by up to five years in prison.
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Threats to buildings
Under US law, communicating a threat to damage or destroy a building or other structure is a criminal offence. This includes threats made verbally, in writing, or through electronic communication. Making such threats is considered a felony in most states and can result in significant penalties, including imprisonment and fines. The specific penalties vary depending on the nature of the threat, the impact on the community, and the presence of any injuries or deaths resulting from the threat.
For example, in Virginia, communicating a threat to bomb, burn, destroy, or damage a building is classified as a Class 5 felony. If the perpetrator is under 15 years of age, the offence is considered a Class 1 misdemeanour. Federal laws also impose penalties for transporting or possessing explosives with the intent to damage or destroy a building. These penalties can include imprisonment of up to ten years, fines, or both, with more severe consequences if personal injury or death occurs.
To address the increasing threats to buildings, local and state governments are encouraged to implement prevention measures and emergency response plans. This includes encouraging employees and residents to report potential threats, providing anonymous tipping options, and offering panic button apps or wearable devices for immediate emergency reporting.
It is important to note that not all threats or attacks can be prevented, but early detection and effective response strategies can help mitigate the impact on public safety and community well-being.
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Extortion
In the United States, extortion may be viewed as a white-collar crime, a theft crime, or a violent crime, depending on the circumstances. Extortion generally occurs when a person gets or demands payment from someone else by threatening to harm them if they don't comply. Extortion through reputational threats is often known as blackmail, and people may use the terms blackmail and extortion interchangeably.
For example, Phil asks Vern for $1,000 to deal with a family matter. When Vern refuses, Phil says that he will send his brother to "knock some sense into" Vern if he does not hand over the money. This would fall within the definition of extortion in states such as California. Another example would be Valerio giving money to Pedro after he said that he would report Valerio to immigration authorities unless he received the money.
California describes extortion under Section 518 of its penal code as:
- Threatening or using force against someone or claiming an official right to make someone do something when one does not have the right to do it (making the victim act "under color of official right")
- Intending to make the victim give you something valuable or perform an official act for you
- Making the victim consent to giving you something valuable or performing an official act
- Actually making the victim give you something valuable or perform an official act
At the federal level, various statutes cover certain forms of extortion. For instance, 18 U.S. Code Section 872 prohibits extortion by federal officers or employees, with a possible sentence of up to three years in prison, or up to one year if the amount involved was less than $1,000. The Hobbs Act (Section 1951) imposes up to 20 years of imprisonment for extortion that interferes with interstate commerce.
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Intimidation
Criminal threats and intimidation are related concepts under US law. Intimidation refers to any course of conduct or speech that creates fear in a person. To prove intimidation, the prosecution must demonstrate that:
- The defendant engaged in conduct or directed speech toward a specific person.
- The defendant intended their speech or conduct to create fear.
- The defendant's speech or conduct caused the person to be afraid.
It is important to note that the legal standards and elements of proof for intimidation may vary from state to state, and an experienced criminal defence lawyer can provide guidance on the specific laws and potential penalties in each jurisdiction.
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Frequently asked questions
A threat of violence involves threatening to kill or physically harm someone else. This can be done verbally, in writing, or through electronic communication.
Examples include threatening to blow up a building or detonate a bomb, threatening to injure or kill someone, or threatening to reveal secrets or damaging information.
Criminal threats involve explicit threats of violence or threats to commit a crime that would result in death or serious harm. Intimidation refers to any conduct that creates fear in a person and can be verbal or non-verbal.
Making a criminal threat is a serious offence and can result in felony charges, with penalties including prison time. The specific consequences depend on the circumstances and the jurisdiction.
Yes, potential defences include arguing that there was no intent to threaten, claiming that the statement was protected under free speech, or asserting that the threat was not genuine and was misinterpreted.
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