At The Dispatch, I got to dig into a question I’ve long been puzzled by. It’s wrong to send a stranger death threats, but when does it become a crime? I spoke to a first amendment lawyer from FIRE and a journalist who frequently fields ominous hate mail to inform my reporting.
A person who belongs to an edgelord-y social circle, in which death threats are tossed around casually, is likely more able to send threatening messages without clearly offering a “true threat.” Juries are asked to consider whether the speaker was aware he or she was making a threatening statement; evidence that the speaker spoke this way to people he had no intent to harm or intimidate can muddy the waters. However, being a sarcastic jerk isn’t an absolute defense. Even when the speaker didn’t intend to communicate a real threat, he can still be culpable if his speech was “reckless.” A speaker can have a duty to consider how his speech would be received.
True threats are more likely to be directed to a particular person, and possibly reference a plan—a date, location, or means of harm. The speaker might make a conditional threat (“Don’t show up to give this talk if you want to live”) which the target can reasonably conclude is intended to deter their own speech. Someone making a threat doesn’t need to actually plan to carry it out to be legally culpable. As Appleby explained, a student calling in a bomb threat during exams has probably made a true threat, even if he has no intention of building bombs. The threat was communicated clearly, even if it was a bluff…
It’s hard to escape the sense that, as violent speech is deployed more casually, it acts as a smoke screen for the most dangerous actors. Social norms often depend on a moat of stigmatized conduct surrounding the most dangerous breaches. Schools bar teachers from driving students home, not because there’s anything wrong with offering a lift, but because a predatory teacher has a lot to gain from social permission to isolate a student. These rules operate like tripwires—a bad actor will break a visible, rarely trespassed norm before he breaks the rule against direct harm. But when the previously transgressive or antisocial becomes normal, it’s not just the dangerous people in the gray zone.