When Is a Youtube Video a "true Threat"?

• Citation: Vol. 9 No. 3
• Publication year: 2014

Washington Journal of Law, Technology and Arts Volume 9, Issue 3 Winter 2014

When Is a YouTube Video a "True Threat"?

Pedro Cells © Pedro Celis

ABSTRACT

In United States v. Jeffries, the Sixth Circuit upheld a defendant's conviction under 18 U.S.C. § 875(c) for transmitting a threat through interstate commerce after the defendant posted a music video on YouTube. The video threatened a local judge presiding over the defendant's child custody proceedings. Circuits have split on whether § 875(c) and other similar federal threat statutes require the defendant to possess a subjective intent to threaten. This Article argues that the "true threat" test courts use to apply § 875(c) essentially incorporates a subjective intent to threaten. The Article then applies the subjective intent requirement to YouTube videos, using the reasoning in United States v. Alkhabaz as a model.

TABLE OF CONTENTS

Introduction..................................................................................228

I. Circuit Split on Requisite Mens Rea for 18 U.S.C. § 875(c)................................................................229

II. The First Amendment Requires that § 875(c) Apply Only to "True Threats".........................................................231

III. The Sixth Circuit and True Threat Analysis.........................232

A. United States v. Jeffries...................................................232

B. United States v. Alkhabaz.................................................233

C. Distinguishing Alkhabaz horn Jeffries.............................234

D. The Sixth Circuit's True Threat Test Combines Subjective and Objective Standards..............................235

IV. Applying Subjective and Objective Intent Requirements to YouTube Videos...............................................................236

A. Objective Intent Requirement..........................................237

B. Subjective Intent Requirement.........................................237

C. Practical Differences Between the Sixth and Ninth Circuit Approaches........................................................237

Conclusion...................................................................................238

Practice Pointers...........................................................................238

INTRODUCTION

When does a YouTube video constitute a criminal threat? The Sixth Circuit recently held that a defendant who posted an original music video on YouTube violated a federal threat statute.(fn1) The video contained threatening comments directed at a local judge, and referenced the defendant's upcoming court date in a custody case. Lyrics in the video included "take my child and I'll take your life" and "July the 14th is the last time I'm goin' to court."(fn2) The court upheld the defendant's conviction under 18 U.S.C. § 875(c), which criminalizes conveying a threat to injure or kidnap a person through interstate commerce.(fn3)

Using § 875(c) to prosecute threats made in YouTube videos raises interesting First Amendment concerns. Unlike other interstate communications, such as telephone calls, YouTube videos and similar posts on other forms of social media are generally not directed at specific individuals. Thus, an application of criminal liability to YouTube videos may have a particularly chilling effect on public speech.

This Article argues that a YouTube video can only constitute a "true threat" if its creator had a subjective intent to threaten. Subjective intent to threaten is demonstrated by evidence that the video was disseminated to the threatened individual or that the threat was made to further a purpose through intimidation. Requiring subjective intent reduces the potential chilling effect of § 875(c) by ensuring that only threats directed at specific individuals or groups are subject to liability.

I. CIRCUIT SPLIT ON REQUISITE MENS REA FOR 18 U.S.C. § 875(C)

The text of § 875(c) contains no language about the requisite mens rea. The statute provides: "whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both."(fn4) Despite this broad language, courts have not interpreted § 875(c) as a strict liability offense, noting the absurdity of the results and the general common law preference for mens rea requirements in criminal statutes.(fn5)

Although courts agree that a violation of § 875(c) is not a strict liability offense, they disagree about the requisite mens rea. Courts have addressed two questions about § 875(c)'s mens rea requirements. The first is whether the defendant must intend to carry out the threat or simply intend to make the threat. Courts have held that only intent to threaten is required, or conversely that intent to carry out the threat is not required.(fn6)

The second mens rea issue is whether the intent to threaten must be objective or subjective. Phrased differently, the issue is whether the communication must be a threat when viewed from the perspective of the defendant (subjective intent) or from the perspective of a reasonable person (objective intent). Currently, only the Ninth Circuit requires subjective intent. Other circuits require only obj ective intent.(fn8) However, some circuits, such as the Sixth Circuit...