At What Point Is a Death Threat a Crime?

I scanned the messages and blocked many of them, trying to ensure I didn’t miss any threat that should be reported to the police.

Nothing I saw crossed that line. Celebrating someone’s death (at any age) was free speech. Publicly longing for the deaths of my future children was probably legally kosher, too. I had no reason to believe that my interlocutors intended to act on their desires. After all, these people emailing me and replying (even to unrelated posts) to delight in my children’s deaths were probably normal people offline. Saying “Die in a fire,” posting memes that valorize Luigi Mangione, or urging others to commit suicide through the shorthand of “kys” are, nowadays, something “normal” people do. The line between serious threat and hyperbolic disagreement is blurrier than ever.

That makes it hard for colleges, workplaces, and other institutions to decide how they are going to set limits on speech and safety. If a death threat is, increasingly, a socially accepted way of blowing off steam, how do you sift true threats from phatic speech? When does a threat become a crime?

In law, a “true threat” is a statement through which a speaker communicates an intent to commit an act of unlawful violence against an individual or group of individuals. Jessie Appleby, a program counsel at the Foundation for Individual Rights and Expression (FIRE), is used to differentiating awful speech from unlawful speech. As Appleby explains it, there’s plenty of hateful speech that doesn’t rise to the level of a “true threat.” A speaker can advocate violence (“someone should kill [name]”) or argue for the moral propriety of violence or moral need for violence (“a just society wouldn’t allow [name] to keep breathing”) without crossing that line.

Some of the most offensive language is protected speech. The larger the group of people threatened, the less likely it is that a court will accept that anyone (speaker or target) believed the speaker intended to communicate that they would personally carry out what they called for. In Appleby’s experience, some of the violent, antisemitic rhetoric that erupted on college campuses after October 7, 2023, illustrated this difference. One faculty member who said publicly “all Zionist journalists should be killed” was legally in the clear—no one expected that he proposed to carry out his threat, per Appleby. A student at Cornell, however, faced federal charges for saying he was going to “shoot up” the school’s kosher dining hall. It was a threat within his capacity to carry out.

A person immersed in an edgelord-y social circle where death threats are tossed around casually is more likely to send threatening messages without clearly presenting a “true threat.” Juries must decide whether the speaker knew they were issuing a threat; evidence that the speaker addressed people he had no intent to harm or intimidate can muddy the waters. Still, being a sarcastic jerk is not an absolute defense. Even if the speaker didn’t intend to communicate a real threat, they can still be culpable if their speech was “reckless.” A speaker may have an obligation to consider how his speech would be received.

True threats tend to be aimed at 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 noted, 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.

Those nuances make it hard for an individual who receives a threat (or a barrage of them) to guess which may be legally actionable. At Amherst College, for example, a conservative student named Jeb Allen was threatened, via a student forum called Fizz, in response to an article he wrote criticizing diversity programs. “[D]ragging jeb allen on fizz isn’t enough I need a— [gunshot],” the anonymous student wrote.

Was it a true threat? The school was able to identify the poster, but told Allen that the matter should be resolved with an apology. For Allen, it felt like his school treated microaggressions more seriously than openly calling for his death. A school or a workplace won’t always be able to evaluate the seriousness of a threat. The police are able to investigate in a way that goes beyond what a boss or a dean of students can do—and may uncover evidence that clarifies whether the person who issued the threat was also making a plan in the real world.

The more threats a person faces, the harder it is to triage them. For Benjamin Ryan, an independent journalist who contributes to the New York Times, almost all the voices longing for his death blurs into background noise. He’ll report the commenters hoping his cancer comes back, that he’ll kill himself, that someone might make him “disappear,” to BlueSky’s moderation team, but he thinks few of these posts are legally actionable. What would be the point, he told me, of going to a police precinct and filling out a bunch of forms just for nothing to happen?

One threat stands out, though. It came during a difficult season in Ryan’s life, when he was waiting to find out if his cancer had returned, and when, at Columbia University in New York, his alma mater, pro-Palestine protesters took over Hamilton Hall and trapped janitorial staff. Suddenly, everything inside and outside was shuddering into instability. That’s when an anonymous Instagram user with a blurry profile picture messaged him: “We know that you live in New York, you’re not welcome here, watch your back.”

Was it a true threat? It felt like the speaker might have a plan to hurt Ryan, with his or her reference to his home. But it also seemed like an exam-time bomb threat, where the speaker intended to change Ryan’s behavior via bluff. “Liberal people routinely betray illiberal attitudes when it’s convenient,” Ryan told me by phone. “‘I want to intimidate you out of speaking’—that’s illiberal.” Still, he didn’t expect that anything would happen if he went to the police. 

One of the publications he freelanced for believed the threats were serious enough to ask about what he needed to preserve his safety. Ryan pays for a service to keep his address from surfacing online, and he asks his friends to be discreet, too. When a friend took and posted a photo of Ryan’s cat, he asked the friend to take it down—the photo showed the view out of Ryan’s apartment window, which could be used to derive his building and unit. 

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. 

Legally, a target has some options even when it’s hard to decide if awful speech is a true threat. Appleby points out that persistent threats, even if not fully believable, can rise to the level of harassment or stalking, even if each threat, taken alone, might not be actionable. But you can’t get a restraining order against the online mob in toto. Little by little, each casual tweet is wearing away our personal and legal standard for what can be understood as a “real” threat. If called to serve on a jury, each of us has to put aside our wishes about our norms and evaluate a potential threat against an increasingly toxic background buzz. But day by day, we can change those norms back, by refraining from casual, jocular invocations of violence and asking our friends to do likewise.