“F--king with our elections is TERRORISM, and us Americans clearly don’t tolerate terrorist (sic) so yes you should be afraid, your daughter should be afraid and so should [your husband].”

“I hope you all go to jail for treason. I hope your children get molested. You’re all going to f--king die.”

What do these statements have in common? Both were communicated to an election official. What differentiates them? The first, sent across state lines to an official in Michigan resulted in a federal criminal prosecution. The second, sent intra-state to a Nevada official, was deemed protected political speech by the Nevada state police.

This disparate treatment may be an example of the confusion borne by the lack of clarity surrounding “true threats.” Clarification on when a threat rises to the level of criminal action is desperately needed. In the aftermath of the 2020 election, there were a record number of threats against election officials at all levels of government: so much so that the federal Department of Justice launched a task force to monitor the threats. The U.S. Election Assistance Commission also developed a resource on election official security in response to concerns among the election administration community.

Reuters recently documented 102 threats of death or violence received by election officials and their relatives. These threats have so far resulted in only four known open cases where there was an arrest and zero convictions as of this writing. Why the lack of enforcement or indictments? Current precedent surrounding the First Amendment and “true threats” may leave law enforcement guessing about how far is too far when it comes to offensive language directed at public officials.

The best definition available for a “true threat” comes from the U.S. Supreme Court in Virginia v. Black: “those statements where 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.” The Court further clarified that “[t]he speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur.”

Following the Black decision, evidence that a statement would put any “reasonable person” in fear was sufficient for a conviction in many jurisdictions. However, the Supreme Court revisited the issue in Elonis v. United States, with a new focus on the intent of the person making the statement when deciding whether a “true threat” was present – that is, did the speaker intend their words to convey a true threat of violence. Unfortunately, the Court failed to articulate any method of measuring intent. This lack of clarity is no secret in the legal community. After Elonis, Justice Sotomayor wrote in her Perez v. Florida concurrence “that to sustain a threat conviction without encroaching upon the First Amendment, States must prove more than mere utterance of threatening words – some level of intent is required.” She then challenged the Court to “decide precisely what level of intent suffices under the First Amendment—a question we avoided two Terms ago in Elonis.”

Absent clarity on this issue, law enforcement agencies seem increasingly hesitant to bring charges in these cases. No agency wants to be seen as attacking the First Amendment and no prosecutor is eager to take on a case that is doomed from the start. Sadly, failing to prosecute the most egregious threats sends the implicit message that this type of speech is acceptable and it will therefore continue.

It is critical that members of the public and law enforcement know with certainty when speech crosses the constitutional line and becomes unprotected.  The threshold should be the same regardless of whether federal or state authorities are investigating. As the country is faced with ever escalating tensions around a myriad of hot-button issues, it may be time for the Supreme Court to step in with a clear answer on this issue.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.