Subjective Intent and Threats

In United States v. Jeffries, No. 11-5722 (Aug. 27, 2012), the Sixth Circuit addressed whether a conviction under the federal threat statute, 18 U.S.C. § 875(c), requires proof of the defendant’s subjective intent to threaten. The case arose after the defendant posted to YouTube a video of himself performing an original song about his daughter and the judge presiding over her custody proceedings, in which he tells the judge (among many other similar things), "Take my child and I’ll take your life."

The parties agreed that the statute applies only to "objectively real" threats, meaning those for which "a reasonable person would have perceived . . . a true threat . . . ." And there did not seem to be any genuine dispute that under prior Sixth Circuit cases, a defendant’s state of mind is irrelevant under Section 875(c). But the defendant argued that the Supreme Court’s decision in Virginia v. Black, 538 U.S. 343 (2003)—which struck down a provision of the Virginia cross burning statute that treated "any cross burning as prima facie evidence of intent to intimidate"—was tantamount to a First Amendment requirement that "all communicative-threat laws" must "contain a subjective-threat element."

The Sixth Circuit disagreed, finding that Black "does not work the sea change that Jeffries proposes" and does not upset prior Sixth Circuit law addressing Section 875(c): "The reasonable-person standard winnows out protected speech because, instead of ignoring context, it forces jurors to examine the circumstances in which a statement is made . . . . A reasonable listener understands that a gangster growling ‘I’d like to sew your mouth shut’ to a recalcitrant debtor carries a different connotation from the impression left when a candidate uses those same words during a political debate. And a reasonable listener knows that the words ‘I’ll tear your head off’ mean something different when uttered by a professional football player from when uttered by a serial killer."

The court also rejected the defendant’s sufficiency of the evidence argument. While allowing that this appears to be "the first reported case of a successful § 875(c) prosecution arising from a song or video," the court found that "the statute covers ‘any threat,’ making no distinction between threats delivered orally . . . or in writing . . . , by video or by song, in oldfashioned ways or in the most up-to-date. . . . [O]ne cannot duck § 875(c) merely by delivering the threat in verse or by dressing it up with political (and protected) attacks on the legal system."

In addition to authoring the majority opinion, Judge Sutton wrote a separate "dubitante" opinion explaining that "Sixth Circuit precedent compels this interpretation of § 875(c)" and that Black "does not require a different interpretation," but "wonder[ing] whether our initial decisions in this area (and those of other courts) have read the statute the right way from the outset." He relied primarily on the fact that "[e]very relevant definition of the noun ‘threat’ or the verb ‘threaten[]’ . . . includes an intent component," and yet "[c]onspicuously missing from any of these dictionaries is an objective definition . . . ." Thus, the text alone seems to demand a subjective intent standard. Moreover, "Allowing prosecutors to convict without proof of intent reduces culpability on the all-important element of the crime to negligence." This rarity in criminal law should depend on "express congressional directive" rather than "some judicially manufactured deus ex machina . . . ."