Posting “I Wish Someone Would In Alive Him” About Federal Judge Isn’t Punishable Threat

From Judge Carlos Mendoza (M.D. Fla.) in U.S. v. Joudeh:

Defendant is charged with one count of transmission of an interstate threat to injure or kill another person in violation of 18 U.S.C. § 875(c). The facts alleged in the Indictment state that Defendant violated this statute via “an online comment that included the statement, ‘I wish someone would in alive him.'” The Indictment provides no further information as to where or why this comment was posted, to whom it was communicated, or who the referenced “him” is in the comment.

The “him” was, however, apparently identified in this search warrant affidavit:

On June 22, 2025, United States District Court Judge, John L. Badalamenti contacted the United States Marshals Service (USMS) for the Middle District of Florida regarding a threat stemming from reaction to a June 21, 2025, New York Times article called, A White Nationalist Wrote a Law School Paper Promoting Racist Views, It won Him an Award. Judge Badalamenti is an adjunct professor at the University of Florida and taught a seminar class in the fall semester of 2024 on the legal theory originalism.

The New York Times article focuses on a capstone paper a student wrote for Judge Badalamenti’s class. The student’s paper, according to the article, argued that the framers of the Constitution intended the phrase We the People to refer exclusively to white people. As such, in the paper, the student argued for the removal of voting rights protections for nonwhite people and issuance of shoot-to-kill orders against criminal infiltrators at the border. The student obtained the book award, which the article describes as meaning the student was designated the best student in the class and was awarded to the student by Judge Badalamenti….

One of the comments on [a post about the article] was from Instagram user falasteen8090 (Falasteen8090)…. Falasteen8090 commented on [the] post, “I wish someone would in alive him.” USMS and Judge Badalamenti suspected that Falsteen8090 meant to say unalive him, meaning kill him….

The court dismissed the indictment, concluding as a matter of law that the post didn’t fit within the “true threats” exception to the First Amendment:

The Government argues that “in alive” is a typographical error that should be interpreted as “unalive,” which is a euphemism for kill. Even accepting this construction as true, no reasonable jury could consider this broad, non-detailed wish to be a threat at all, much less a true threat.

Under certain circumstances, a wish may possibly constitute a true threat. However, in the few cases where an “I wish” type of statement constituted a true threat, there were additional statements alleged that provided threatening context.

For example, in Stock, the indictment alleged that the defendant “posted a notice on Craig’s List” stating:

i went home loaded in my truck and spend the past 3 hours looking for this douche with the expressed intent of crushing him in that little piece of shit under cover gray impala hooking up my tow chains and dragging his stupid ass down to creek hills and just drowning him in the falls. but alas i can’t fine that bastard anywhere … i really wish he would die, just like the rest of these stupid fucking asshole cops. so J.K.P. if you read this i hope you burn in hell. i only wish i could have been the one to send you there.

In addressing the defendant’s argument that the final three sentences of this post established that it was not a true threat because “[m]erely wishing[ ] or hoping that harm would come to another falls outside the scope of” § 875(c), the Third Circuit reasoned that it was possible for a wish to “constitute a threat in the right context.” And then the Third Circuit looked at “the context of the first and second sentences,” and determined that “a reasonable jury could find that [the defendant] did not simply wish that [the victim] would suffer harm, but that he was prepared to commit the act himself.”

Similarly, the Eighth Circuit rejected a defendant’s argument that he did not make a true threat because he was merely expressing a wish that the President would suffer harm in an email that stated:

WHATS SO HARD ABOUT A BIRTH RECORD? ONLY NON AMERICAN S STILL TRUST YOU. YOU ARE A CROOK A FEAR MONGEL I HATE YOU AND I HOPE SOMEONE KILLS YOU AND YOUR FAMILY REAL SOON. TO WARN THE NEXT ILLEGAL ALIEN WHO TRIES TO TAKE YOUR PLACE. I WASNT RACISET UNTILL 2008 THANKS NIGGERS! WHITE PEOPLE CAN BE NIGGERS TOO! kill obama MRS OBAMA AND THE 2 LITTLE NIGGER BRAT KIDS!

In addressing this statement, the Eighth Circuit looked at the context of an additional email the defendant sent to the same recipient in the same timeframe where he wrote “i would kill obama if i could” and “i want to see obama’s blood spilled all over the white house make it pink.” See also U.S. v. Saul (D. Neb. 2020) (denying a motion to dismiss where the defendant posted the following comment on Facebook: “Some borrow me a gun and a couple hundred rounds of ammo. Wanna get in on this whole mass shooting craze before it dies down. Everybody getting shot at least once. Myself included,” reasoning that the post provided specific details of what the defendant wanted to do, how he would do it, and why he would do it)….

[T]he statement alleged in the Indictment is a mere wish that “someone” would “in alive” an unnamed “him.” There is no promise or indication that specific violence will befall someone if a condition occurs. This statement is simply a vague desire that someone was no longer alive. See Solomon v. Petray (W.D. Ark. 2013) (“[T]he mere wish that a person die from a slow and painful disease does not constitute a true threat.”); U.S. v. Daulong (W.D. La. 1945) (“If the defendant had simply said that someone should or ought to kill the President, with no declaration or other indication that the speaker intended or would commit the act, it seems clear that this would not amount to a threat.”)….

The Fifth Circuit in United States v. O’Dwyer (5th Cir. 2011), affirmed the dismissal of an indictment, determining that the following statement was not a true threat as a matter of law: “Maybe my creditors would benefit from my suicide, but suppose I become ‘homicidal’? Given the recent ‘security breach’ at 500 Poydras Street, a number of scoundrels might be at risk if I DO become homicidal.” The Fifth Circuit reasoned that the “statement [was] hypothetical and conditional,” that it “did not threaten bodily harm to any particular individual.”

The statement at issue here is not specific, not graphic, and not explicitly violent. It does not express an intent to commit harm in the past, present, or future, and there is no other context to explain how this statement could possibly be threatening. Even the comment in O’Dwyer, which was determined not to be a threat as a matter of law, is more threatening than the one alleged here. The statement “I wish someone would in alive him” is simply not a threat. No reasonable jury could conclude otherwise….

Fritz Scheller represents defendant, as does Sufia Khalid (Muslim Legal Fund of America).