Prosecution for Threats to Kill Muslims (and Blacks, Immigrants, and People from India) Can Go to Jury

From U.S. v. Demeo, decided Tuesday by Judge Sheri Polster Chappell (M.D. Fla.); compare the recent “See MAGA, Shoot MAGA” case, which reached the same result:

… Defendant commented on twenty-two different YouTube videos with death threats to various ethnic groups, including Muslims, “American blacks,” immigrants, and “people from India.” … [T]he Government charged Defendant by criminal complaint with violating 18 U.S.C. § 875(c), which prohibits the transmission, in interstate or foreign commerce, of any communication containing any threat to injure the person of another. … The indictment … includes a chart listing the count, a summary of the communication, the communication date, and the YouTube comment ID number. The communications are listed for each count as follows:

1. Threat to kill and eradicate Muslims off the face of the earth
2. Threat to slaughter, eradicate, and kill every Muslim man, woman, and child
3. Threat to kill and genocide all Muslim men, women, and children
4. Threat to kill and genocide Muslims in their homes
5. Threat to kill and genocide all Muslims
6. Threat to slaughter and kill all Muslims
7. Threat to kill all Muslim men, women, and children
8. Threat to kill immigrants, Muslims, “American blacks,” and “people from India”
9. Threat to genocide and slaughter every Muslim
10. Threat to slaughter and genocide Muslims and politicians
11. Threat to genocide, kill, and exterminate Muslim men, women, and children
12. Threat to kidnap and kill entire towns of Muslim men, women, and children by loading them on buses to a location where they will be shot in the head and sent through a woodchipper
13. Threat to genocide and kill every Muslim in America
14. Threat to slaughter and kill illegal immigrants
15. Threat to kill and genocide Muslims on US soil
16. Threat to kill and eradicate Muslims
17. Threat to kill any Muslim found on US soil
18. Threat to kidnap and kill Muslims by loading them onto buses, transporting them to another location, and shooting them in the head, and sending them through woodchippers
19. Threat to kidnap and kill Muslims

You can see the text of the posts in the Criminal Complaint; just one example:

Muslims listen up- you are not welcome here any more you either go back to your country or die here. We are sick of the gov half assing everything and creating the problems so we as a united people are about to fix these wrongs. Muslims are always planning on killing Americans- guess what we are now meeting making plans on how to run the most efficient effective genocide in history. We are going to kill everyone of you who doesn’t leave- men women children zero fucks given your not human your parasites you inbreed biological waste and we can’t wait to exterminate you from our land last warning. The gov won’t be able to save you they are in fighting they can’t pass a budget there’s no way they are going to stop the worlds largest armed civilian population that’s out for blood.

Defendant … argu[es] the indictment fails to state an offense, lacks specificity, and is unconstitutionally vague as applied. He primarily argues that his statements were not “true threats,” so the indictment does not establish a violation under § 875(c), and his statements are protected by the First Amendment….

When reviewing an indictment on a criminal defendant’s motion to dismiss, the Court is confined to the four corners of the indictment itself…. “The indictment’s allegations are assumed to be true and are viewed in the light most favorable to the government.”

An indictment need not be elaborate, detailed, or complex. Rather, the Rules require only “a plain, concise, and definite written statement of the essential facts constituting the offense charged[.]” And an indictment comports with the Sixth Amendment so long as it (1) apprises the defendant of the charged conduct, and (2) permits him to avoid double jeopardy in any other proceeding against him….

[A] violation of § 875(c) has two elements: (1) “the Defendant knowingly sent a message in interstate commerce containing a true threat to injure the person of another; and (2) the Defendant sent the message with the intent to communicate a true threat or with knowledge that it would be viewed as a true threat.” The term “true threat” is defined as “a serious threat—not idle talk, a careless remark, or something said jokingly—that is made under circumstances that would place a reasonable person in fear of being injured.” …

Defendant argues that the indictment lacks specificity because it omits any context or circumstances surrounding his comments, without which the allegations do not suggest his comments amount to true threats. On that score, he maintains his comments are not true threats (as a matter of law). He argues no reasonable person would view the alleged comments as a threat because (1) they do not indicate when or where he would undertake the threatened action or that he has the means to act on it, (2) the comments were directed at large groups constituting millions of people, and (3) the comments were posted publicly on a YouTube page rather than sent directly to anyone. This argument fails for several reasons.

The indictment need not allege context so long as a reasonable person could interpret the alleged comments as threatening. And indeed, a reasonable person could interpret Defendant’s comments as threatening, in which he expresses his intent to kill, commit genocide, and slaughter various ethnic groups. Defendant’s arguments to the contrary are a jury consideration…. “[D]ismissal is appropriate only in the rare case where a statement is so clearly non-threatening that no reasonable jury could find otherwise” ….

To be sure, Defendant’s contextual considerations do not alter the analysis. Although he notes that the alleged comments do not provide the when and where of the threatened conduct, the Government need not prove the threats were imminent. See U.S. v. Dillard (10th Cir. 2015) (“Imminence may contribute to a finding that a communication constitutes a true threat, but it is not a required element.”); U.S. v. Vaksman (9th Cir. 2012) (rejecting the defendant’s argument that his email was not objectively a true threat because it contained no threat of imminent action). Nor does it matter that his comments targeted various ethnic groups comprising millions of people. See U.S. v. Hussaini (S.D. Fla. 2022) (rejecting argument that the communications were not true threats because “blacks and Christians” are not discrete and identifiable groups). And although his comments were posted to YouTube videos rather than directed at a particular person, “a true threat does not need to be communicated directly to the intended victim.” U.S. v. Khan (7th Cir. 2019) (addressing threats posted publicly on Facebook to kill broad groups, such as college students, rich people, people walking their dogs, and vulnerable individuals). So Defendant’s arguments are best suited for a jury.

Defendant also argues that § 875(c) is unconstitutionally vague as applied because it does not put him on notice that his speech was unlawful. But this argument has been rejected by other courts. See, e.g., U.S. v. Sutcliffe (9th Cir. 2007) (finding § 875(c) “is not impermissibly vague” because “[a]n ordinary citizen can understand what is meant by the terms ‘threat to kidnap’ and ‘threat to injure'” and “provides sufficient standards to allow enforcement in a non-arbitrary manner”). The Court likewise rejects it here….

Matthew Redavid represents the government.