18 U.S.C. § 875 creates four interstate-threat offenses: kidnap or ransom threats (20 years), extortion threats (20 years), threats to injure (5 years), and threats to property or reputation (2 years). The Supreme Court in Elonis v. United States required that defendant have at least recklessness as to the threat's nature.
Threat prosecutions have surged with text messaging and social media. Section 875 reaches any interstate communication containing a threat — including emails, texts, Facebook posts, Twitter/X posts, and direct messages. The Supreme Court has imposed important mens rea limits, but ordinary social-media outbursts can still produce federal felony charges.
The Four Subsections
(a) Kidnapping or Ransom Threats — 20 Years
Interstate communication of a demand for ransom or reward for the release of any kidnapped person.
(b) Extortion Threats with Intent — 20 Years
Interstate threat to kidnap or injure with intent to extort money or thing of value.
(c) Threats to Injure — 5 Years
Interstate threat to kidnap or injure another person, without the additional extortion intent.
(d) Threats to Property or Reputation — 2 Years
Interstate threat to injure property or reputation with intent to extort.
The Elonis Mens Rea Standard
The Supreme Court in Elonis v. United States, 575 U.S. 723 (2015) held that a "true threat" prosecution under § 875(c) requires more than negligence — the government must prove at least recklessness as to whether the communication would be perceived as a threat.
The Court declined to specify the exact mens rea required, leaving open whether knowledge or purpose is needed. Most circuits have settled on recklessness as the floor.
This is significant in social-media cases where the speaker might claim the words were artistic, hypothetical, or rhetorical. The defense must show:
- The speaker did not actually intend the words as a threat;
- The speaker did not consciously disregard a substantial risk that listeners would perceive a threat.
The "True Threat" First Amendment Standard
The First Amendment protects speech that is hyperbolic, rhetorical, or political — even when it sounds threatening. Watts v. United States, 394 U.S. 705 (1969) reversed a conviction for political hyperbole at an anti-war rally.
To be a "true threat" punishable under § 875, the communication must:
- Be a serious expression of intent to inflict bodily harm;
- Be communicated to convey that intent;
- Not be protected hyperbole, opinion, or rhetoric.
Context matters enormously. Rap lyrics, video-game streams, and emotional outbursts can fail the "true threat" test in ways that direct, specific threats do not.
The Interstate Commerce Element
The threat must travel in interstate or foreign commerce. Easy to satisfy:
- Interstate phone calls;
- Email (which routinely crosses state lines through servers);
- Text messages (cellular networks cross state lines);
- Social media posts (servers and viewers in multiple states);
- Letters mailed across state lines.
Defense leverage exists in pure intra-state communications using local servers — but this is rare in modern practice.
Common Charging Patterns
Domestic Violence Cases
Threatening texts to former partners, particularly when one person crosses state lines.
Workplace Threats
Threats against employers, supervisors, or co-workers communicated through email.
Public Official Threats
Threats against judges, prosecutors, members of Congress — often charged alongside 18 U.S.C. § 115 (threats against federal officials).
Social Media Outbursts
Twitter/X, Facebook, and Instagram threats — often the subject of Elonis-based defenses.
Mass Shooting / Bombing Threats
Threats to schools, government buildings, businesses — aggravated by additional charges.
Swatting
False reports of hostage situations or active shooters causing emergency responses — federal threatening communications + interstate hoax statutes.
Defenses
Not a "True Threat"
The communication was hyperbole, rhetoric, art, or opinion — not a true threat. Context evidence is critical: prior speech, audience, intent, response.
Lack of Mens Rea Under Elonis
Defendant did not consciously disregard the threatening nature of the communication. Particularly viable for emotional, drunken, or autistic-spectrum communications.
Insufficient Interstate Commerce Effect
Pure intra-state communications via local server.
First Amendment Protection
Political speech, artistic expression, parody. Strongest defense for clearly contextual content.
No Extortion Intent
For § 875(b) and (d) — defendant did not act with intent to extort. Threats made in anger without demand for property fail this element.
Strategic Considerations
Section 875 cases often involve mental health, substance abuse, or relationship dysfunction. Defense strategies include:
- Pre-trial diversion programs in qualifying cases;
- Mental health evaluation and treatment as mitigation;
- Plea to misdemeanor offenses (state stalking, harassment) when available;
- Variance arguments at sentencing under § 3553(a);
- Civil counter-actions against complaining witnesses with motives to fabricate.
What to Do If You Are Under Investigation or Charged
- Do not speak with federal agents — FBI, DEA, ATF, IRS-CI, HSI, USPS — without an attorney. Even small lies can become independent § 1001 charges.
- Do not destroy or alter records — destruction is obstruction under 18 U.S.C. § 1519, a 20-year felony.
- Preserve all communications — emails, texts, messaging apps, financial records — but do not delete anything.
- Do not contact witnesses or co-defendants — even social contact can become witness tampering.
- Engage federal defense counsel immediately — call (214) 466-1398. We are admitted in TXND and TXED.
Frequently Asked Questions
Is a Facebook post a federal crime?
It can be — if it is a true threat that travels in interstate commerce. Most social-media platforms route content through servers in multiple states, so the interstate element is usually satisfied.
What is the Elonis decision?
A 2015 Supreme Court decision requiring at least recklessness for a § 875(c) conviction. The government cannot prove threats based on a "reasonable listener" standard alone.
Are rap lyrics protected under the First Amendment?
Often yes. Courts increasingly recognize artistic expression and the conventions of rap as defeating "true threat" status. But threats embedded in rap can still be prosecuted when the context is specific and personal.
What is "swatting"?
Making a false report of a violent emergency at someone's home to provoke a SWAT response. Charged under § 875 (when interstate) plus various hoax and fraud statutes. Carries severe sentences when injury or death results.
Can I be charged for an angry text to my ex?
If the text crosses state lines and contains a true threat, yes. Many domestic-violence threatening-communication cases involve emotional texts to former partners. Mens rea defenses are available but not foolproof.
Speak With a Frisco Criminal Defense Attorney
If you or a loved one is facing federal defense charges in Frisco, Collin County, or anywhere in the Dallas-Fort Worth metroplex, the time to act is now. L and L Law Group attorneys are available 24 hours a day, 7 days a week. Call (214) 466-1398 for a free, confidential consultation, or submit your case online and a licensed attorney will contact you directly.
This article is general information, not legal advice. Texas and federal criminal law are complex and fact-specific — please consult a licensed attorney about your particular situation. Past results do not guarantee future outcomes.