18 U.S.C. § 875(c) — Interstate Threats

Almost every angry message now travels in interstate commerce. That makes § 875(c) a statute with extraordinary reach into ordinary conduct — domestic disputes, online arguments, messages sent while drunk or in crisis.

What has changed is the mental state. The government can no longer convict merely by showing a reasonable person would feel threatened.

What the statute says

18 U.S.C. § 875(c): "Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both."

Neighbouring subsections cover threats accompanied by extortionate demands and carry higher penalties. Subsection (c) is the one charged in most online and domestic cases.

The elements

1. The defendant knowingly transmitted a communication;
2. In interstate or foreign commerce;
3. Containing a threat to kidnap or injure the person of another; and
4. The defendant had the requisite mental state as to the threatening nature of the communication.

Why the interstate element is almost never a defense

Any communication routed through the internet or a mobile network crosses state lines, typically regardless of where sender and recipient are. A text message between two people in the same Texas city satisfies the element because the carrier's infrastructure spans states. Purely face-to-face threats are not covered — but almost nothing else is excluded.

Elonis: negligence is not enough

In Elonis v. United States, 575 U.S. 723 (2015), the Court reversed a conviction based on an instruction permitting conviction if a reasonable person would regard the posts as threatening. Criminal liability under § 875(c) requires proof of the defendant's own mental state — a purely objective standard is insufficient. The Court did not resolve whether recklessness would suffice.

Counterman: recklessness is the constitutional floor

Counterman v. Colorado, 600 U.S. 66 (2023), answered it. The First Amendment requires, in true-threats prosecutions, that the defendant have been at least reckless — that he consciously disregarded a substantial risk that his communications would be viewed as threatening violence.

This matters greatly in practice. Evidence that the defendant was intoxicated, in mental health crisis, engaged in hyperbole, performing for an audience, or genuinely oblivious to how the message would land is now directly relevant to an element rather than merely mitigating.

What counts as a true threat

The statute reaches only "true threats," not protected speech. Courts look at the full context: the relationship between the parties, the history between them, whether the language was conditional, whether it was hyperbole or political rhetoric, the medium, and the reaction of the recipient.

Recurring defense themes: conditional statements that threaten nothing definite; venting to a third party rather than communicating to the target; rap lyrics, fiction, and jokes, which Elonis arose from; and ambiguity, where the message will not bear a threatening reading without the government's gloss.

Penalty range and Guidelines

Up to five years and a fine. Guidelines calculations run through U.S.S.G. § 2A6.1, with enhancements for conduct evidencing an intent to carry out the threat, for multiple threats, and for official-victim status. Where a firearm was possessed or the threat was directed at a judge, juror, or federal official, exposure rises sharply.

A conviction also carries firearm consequences and, in domestic cases, can trigger prohibitions under 18 U.S.C. § 922(g).

Related statutes and pages

18 U.S.C. § 875(b)/(d) — threats with extortionate demand · 18 U.S.C. § 2261A — interstate stalking · 18 U.S.C. § 844(e) — bomb threats · Federal crimes overview