Under 18 U.S.C. 875(c), it is a federal crime to transmit through interstate or foreign commerce any communication containing a threat to kidnap or injure another person. A conviction carries up to five years in federal prison, a fine of up to $250,000, or both. The government does not have to prove the sender planned to carry out the threat or that the victim was actually harmed. After the Supreme Court’s 2023 decision in Counterman v. Colorado, prosecutors do have to prove the sender at least consciously disregarded a substantial risk that the words would be viewed as threatening violence.
What the Statute Prohibits
The communication itself is the crime. Section 875(c) reaches anyone who sends a message containing a threat to kidnap or injure, so long as the message travels through interstate or foreign commerce. Whether the threat could realistically have been carried out is not an element. Whether the recipient was frightened is not an element either, though it often shapes how a jury reads the words.
To convict, the government must show three things: a communication crossed state lines or a national border, the communication contained a threat to kidnap or injure a person, and the sender had the mental state the Constitution requires (discussed below).
Where 875(c) Fits in the Statute
Section 875 has four subsections and 875(c) is the catch-all for threats without an extortion motive. Subsection (a) covers ransom demands tied to kidnapping and carries up to twenty years. Subsection (b) covers threats made to extort money or anything of value, also up to twenty years. Subsection (d) covers extortion threats aimed at property or reputation, up to two years. If a threat to injure or kidnap is not tied to any demand for money, property, or advantage, it falls under (c) and its five-year ceiling.
The Interstate Commerce Element
For anything sent over the internet, the interstate commerce requirement is almost automatic. Even a message between two people in the same city can qualify if the data routes through a server in another state. The government does not have to prove the sender knew the communication would cross state lines. That element is a jurisdictional fact, not part of the defendant’s mental state. Text messages, emails, social media posts, direct messages, and voice calls carried over modern phone networks all normally satisfy it.
What Counts as a True Threat
Not every violent-sounding statement is a crime. The First Amendment protects hyperbole, dark humor, political venting, and artistic expression, and courts have spent decades drawing the line between protected speech and a punishable “true threat.”
Watts v. United States
In 1969, the Supreme Court reversed the conviction of Robert Watts, an eighteen-year-old who told a Vietnam-era discussion group that if the government made him carry a rifle, “the first man I want to get in my sights is L.B.J.” The crowd laughed. The Court called the statement “a kind of very crude offensive method of stating a political opposition” and said political speech is “often vituperative, abusive, and inexact.” Context, the Court held, matters enormously.
Elonis v. United States
For decades most federal courts applied a purely objective test: would a reasonable person read the statement as a threat? In 2015 the Supreme Court rejected that approach in Elonis v. United States. Anthony Elonis had posted graphically violent Facebook messages about his estranged wife, styled as rap lyrics. The jury had been told it could convict if a reasonable person would view the posts as threats. The Court reversed, holding that negligence is not enough for a 875(c) conviction. The Court left open whether recklessness would suffice.
Counterman v. Colorado
The Court closed that gap in June 2023. Counterman v. Colorado held that the First Amendment requires proof of the defendant’s subjective understanding that the statements were threatening, and that recklessness is the floor. Prosecutors must show the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” They do not have to prove the defendant specifically wanted to frighten anyone. Awareness that the words could be taken as a threat, combined with sending them anyway, is enough.
Penalties
The statutory maximum for a 875(c) conviction is five years in federal prison and a $250,000 fine, or both. The offense is a Class D felony. Actual sentences depend on the Federal Sentencing Guidelines, the defendant’s criminal history, and the facts of the case.
Guidelines Calculations
Threatening communications fall under section 2A6.1 of the Guidelines with a base offense level of 12. For a defendant with no criminal history, that yields a range of 10 to 16 months. Several adjustments can move the number significantly:
- Evidence the defendant intended to carry out the threat, such as buying weapons or surveilling the victim, adds 6 levels.
- More than two threats adds 2 levels.
- Sending threats in violation of a court protection order adds 2 levels.
- Threats that caused evacuations, lockdowns, or similar substantial disruption add 4 levels.
- A single instance made with little deliberation can reduce the base level to 8.
Supervised Release and Restitution
After prison, a person convicted under 875(c) faces up to three years of supervised release. In online-threat cases, judges routinely impose cybercrime management conditions: disclosure of every computer device and internet account, monitoring software on approved devices, unannounced searches to verify compliance, and probation-officer approval for any new device or account.
Under 18 U.S.C. 3663, a court can order the defendant to pay restitution for losses caused by the threat. That can include medical and mental health treatment, physical therapy, lost income, and costs of participating in the prosecution. In threat cases, counseling, added security, and temporary relocation frequently show up in restitution orders.
Defenses
The First Amendment is the most common defense, and it is strongest when the statement is ambiguous, satirical, or part of political commentary. Courts look at the full context: whether the statement was conditional, how the audience reacted, whether it sat inside a broader political or artistic argument.
After Counterman, much of the defense work is about mental state. If the defendant genuinely did not recognize that the words could be perceived as threatening, the recklessness standard is not met. That argument fits statements built on obvious hyperbole, dark humor conventions, or artistic framing that an outsider might still find alarming.
Challenging the Evidence
Screenshots can be altered, messages can be pulled out of context, and metadata can be misread. If investigators obtained evidence through a warrantless search, a Fourth Amendment motion to suppress may exclude it. The law around electronic searches is still evolving, and digital evidence is particularly open to these challenges.
Context and Community Conventions
Context does more work in threat cases than in almost any other federal charge. A message that reads as terrifying in isolation can look very different inside a long thread of mutual trash-talking between gaming rivals, or within the conventions of a particular online community. Defense attorneys present the full communication history, the relationship between the parties, and evidence of how similar language is used in the relevant space. Expert testimony on internet culture, slang, or genre conventions can help a jury see how the same words carry different weight in different rooms.
Statute of Limitations
Federal prosecutors have five years from the date of the threatening communication to bring charges under 875(c). The clock starts when the message is transmitted, not when the victim or law enforcement discovers it. When threats are sent over an extended period, each message has its own deadline, so older ones in a series may be time-barred while more recent ones remain prosecutable.
Related Federal Threat Statutes
Section 875(c) is not the only federal threat statute, and the choice of charge turns on how the threat was sent and who it targeted. Threats sent through the U.S. mail fall under 18 U.S.C. 876 instead of 875. Threats against the president or other senior officials fall under 18 U.S.C. 871, which also carries up to five years and has been read with particular attention to the Watts political-hyperbole rule. Threats tied to extortion trigger the higher penalties in 875(b) or 875(d). When threatening conduct crosses into stalking involving interstate communications, 18 U.S.C. 2261A may also apply. In some cases prosecutors bring charges under more than one provision.