PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
WILLIAM A. WHITE,
Defendant-Appellee,
v.
UNIVERSITY OF DELAWARE; SOUTH No. 10-4241
HARRISON TOWNSHIP (NJ) POLICE
DEPARTMENT,
Movants.
AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA, INCORPORATED,
Amicus Supporting Appellee.
2 UNITED STATES v. WHITE
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM A. WHITE,
Defendant-Appellant,
v.
UNIVERSITY OF DELAWARE; SOUTH No. 10-4452
HARRISON TOWNSHIP ( NJ ) POLICE
DEPARTMENT,
Movants.
AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA, INCORPORATED,
Amicus Supporting Appellant.
UNITED STATES v. WHITE 3
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
WILLIAM A. WHITE,
Defendant-Appellee,
v.
UNIVERSITY OF DELAWARE; SOUTH No. 10-4597
HARRISON TOWNSHIP ( NJ) POLICE
DEPARTMENT,
Movants.
AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA, INCORPORATED,
Amicus Supporting Appellee.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(7:08-cr-00054-JCT-1)
Argued: October 28, 2011
Decided: March 1, 2012
Before NIEMEYER, DUNCAN, and FLOYD,
Circuit Judges.
Conviction affirmed, sentence vacated, and case remanded for
resentencing by published opinion. Judge Niemeyer wrote the
opinion for the court, in which Judge Duncan joined and
4 UNITED STATES v. WHITE
Judge Floyd joined in part. Judge Duncan wrote a separate
concurring opinion. Judge Floyd wrote a separate opinion
concurring in part and dissenting in part.
COUNSEL
ARGUED: Linda F. Thome, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for the United
States. Melissa Warner Scoggins, WARREN & ASSO-
CIATES, PLC, Norfolk, Virginia, for William A. White. ON
BRIEF: Thomas E. Perez, Assistant Attorney General, Jes-
sica Dunsay Silver, Tovah R. Calderon, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for the
United States. Rebecca K. Glenberg, Gabriel Z. Walters,
AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA
FOUNDATION, INC., Richmond, Virginia, for Amicus Sup-
porting William A. White.
OPINION
NIEMEYER, Circuit Judge:
A jury convicted William White, the "Commander" of the
American National Socialist Workers’ Party, on four counts
(of a seven-count indictment), Counts 1, 3, 5, and 6. The con-
victions on Counts 1, 5, and 6 were for transmitting in inter-
state commerce — by email, U.S. Mail, and telephone —
threats to injure or intimidate individuals, in violation of 18
U.S.C. § 875(c) (prohibiting interstate communications con-
taining threats to injure a person), and the conviction on
Count 3 was for violating 18 U.S.C. § 1512(b)(1) (prohibiting
the intimidation of individuals to "influence, delay, or prevent
the[ir] testimony").
On White’s Rule 29 motion for judgment of acquittal,
based on arguments that his communications were political
UNITED STATES v. WHITE 5
speech protected by the First Amendment and, in any event,
the evidence was insufficient to support a finding of guilt, the
district court denied the motion as to Counts 1, 3, and 5 and
granted it as to Count 6. The court sentenced White to 30
months’ imprisonment, rejecting the government’s argument
for a sentencing enhancement because of the vulnerability of
some victims of the crime charged in Count 3.
The government appealed the district court’s judgment of
acquittal on Count 6 and its refusal to apply the sentencing
enhancement for vulnerable victims on Count 3, and White
appealed the district court’s refusal to grant his Rule 29
motion as to Counts 1, 3, and 5 and to sustain his objection
to Count 3 based on constructive amendment of the indict-
ment.
For the reasons that follow, we affirm the district court’s
rulings on the Rule 29 motions as to all four counts, and we
affirm White’s convictions on Counts 1, 3, and 5, but we
vacate White’s sentence and remand for resentencing because
the district court applied an incorrect standard in deciding
whether to consider an enhancement for victims’ vulnerabil-
ity.
I
William White, the "Commander" of the American
National Socialist Workers’ Party, which he formed in 2006,
conducted activities from his home in Roanoke, Virginia, pro-
moting his neo-Nazi white supremacist views by publishing
a white supremacist monthly magazine; by posting articles
and comments on his white supremacist website, "Over-
throw.com," as well as on other similar websites, such as
Vanguard News Network Forum; and by conducting a radio
talk show.
Following his seven-count indictment for threatening indi-
viduals and intimidating them, a jury convicted White on four
6 UNITED STATES v. WHITE
counts and acquitted him on three. The facts proved at trial on
the four counts of conviction are as follows:
Count 1: Citibank employee Jennifer Petsche
Following a dispute with Citibank (South Dakota), N.A.,
over the amount White owed Citibank and how the bank was
reporting White’s past due amounts to credit agencies, the
bank and White reached a settlement agreement by which
White agreed to pay the bank $14,000 and the bank agreed to
request deletion of adverse credit commentary as reported by
the three primary credit reporting agencies.
When, after a couple of weeks, the adverse commentary,
referred to as "derogatories," had not yet been removed,
White began calling Citibank repeatedly. He placed approxi-
mately 50 calls to Citibank over the period of 24 hours, and
eventually left a voicemail for Jennifer Petsche, a litigation
specialist at Citibank. In the voicemail, White demanded that
Petsche fax to his attorney a copy of the letter that Citibank
had sent the credit reporting agencies and said, "I now have
your name and direct number so I will not hesitate to call you
back should we not receive that in a prompt manner." Pets-
che’s supervisor advised Petsche not to respond to the voice-
mail since both the company and White were represented by
counsel.
The next evening, on March 22, 2007, Petsche received
another voicemail from White on her home answering
machine, informing her that White had sent her an email and
instructing her to "review it, respond to it, and send over the
necessary information as quickly as possible." This telephone
call frightened Petsche, as she had never before had a cus-
tomer call her at her home, and she called her husband to
determine what time he was coming home. She also called the
night supervisor at Citibank to report the call.
The next morning, Petsche found the email sent to several
versions of her email address. The email began by listing
UNITED STATES v. WHITE 7
Petsche’s full name, age, birth date, current home address
with the word "confirmed" beside it, three of her previous
home addresses, her current home telephone number with the
word "connected" beside it, and her husband’s full name. The
email then read:
I understand you think you’re very tough and you
think that by dragging this process out you have cre-
ated me a lot of misery; that is an incorrect assess-
ment, but I must admit I have run out of patience
with you and your smug attitude. I hope the fact that
I’ve obviously paid someone to find you conveys the
seriousness with which I take your current attitude.
If you resolve this issue quickly and efficiently I can
guarantee you will not hear from me again; if you
don’t, well, you will be well known to the Citibank
customers you are currently in litigation with in [a]
very short amount of time.
Again, make my life easy, fax over the letter, and
you will not be hearing from me again.
PS: I took the liberty of buying the [Citicard] corpo-
rate phone directory and locating information on
your outstanding disputed credit accounts from an
internet dealer today, and can probably make you
better known to your customers than the security
measures you enact at your company indicate you
would like. Consider this, as I’m sure, being in the
collections business and having the attitude about it
that you do, that you often make people upset. Lord
knows that drawing too much publicity and making
people upset is what did in Joan Lefkow.
After the last paragraph, the email included a hyperlink to a
Google search on Joan Lefkow. Petsche clicked the hyperlink
and learned that Lefkow was a judge whose husband and
8 UNITED STATES v. WHITE
mother had been murdered by a disgruntled litigant who had
appeared before Judge Lefkow in court.
Petsche took this email "as a direct threat" to herself and
her family, and she immediately notified her direct supervisor,
the paralegal working with her, and Citibank security. Petsche
"went to pieces" and felt as if she was "in a state of shock."
The paralegal broke out in hives and had to go home. Citi-
bank’s lead investigator took the email as a threat to Petsche
and launched a full investigation. Eventually, when he discov-
ered that White was the leader of a white supremacist organi-
zation, he turned the investigation over to the FBI, fearing a
violent attack on Citibank employees. Petsche testified at trial
that she remained in fear for her safety and the safety of her
family for the next three years, taking precautions such as
changing her telephone number to an unlisted number.
Count 3: The HUD plaintiffs
In 2007, African-American tenants of a Virginia Beach,
Virginia, apartment complex were pursuing a claim of racial
housing discrimination against their landlord through the U.S.
Department of Housing and Urban Development ("HUD").
The claim had been reported in the media, and the formal
complaint, which included the names of the plaintiffs, was
available on HUD’s website.
In May 2007, White mailed packages to numerous tenants
involved in bringing the complaint, most of which were
addressed to adult tenants or simply to "Resident." One pack-
age, however, was sent to the address of Tasha Reddick and
was addressed to Reddick’s two minor children, who were
both under the age of nine.
Each of the packages sent to the African-American tenants
at the apartment complex included a letter and a copy of a
White’s neo-Nazi magazine. The letter, which was printed
with a letterhead containing a swastika, was addressed to
UNITED STATES v. WHITE 9
"Whiney Section 8 Nigger" and included the subject line "Re:
Your complaint against Henry LLC." The letter read:
Dear Nigger Tenant:
I read today of your complaint against James
Crocket Henry and Henry LLC. I do not know Mr[.]
Henry, but I do know your type of slum nigger, and
I wanted you to know that your actions have not
been missed by the white community.
For too long, niggers like you have been allowed to
get one over on the white man. You won’t work.
You won’t produce. You breed and eat and turn the
world around you into a filthy hole, but you won’t
do anything to earn or deserve the life you live. Nig-
gers like you are nothing new. All of Africa behaves
as you do - with the difference that, there, there is no
white man to exploit, only brutal niggers [sic] dicta-
tors to give the lot of you the kind of government
you deserve.
You may get one over on your landlord this time,
and you may not. But know that the white commu-
nity has noticed you, and we know that you are and
will never be anything other than a dirty parasite -
and that our patience with you and the government
that coddles you runs thin.
White signed each letter, "Bill White, Commander, American
National Socialist Workers’ Party." The enclosed magazine
displayed a large swastika on the cover with the word "The
Negro Beast" emblazoned on the front.
Two of the tenants, Tiese Mitchell and Reddick, testified at
trial that they were frightened by the letter and immediately
packed up their belongings to take their children to stay with
relatives for several days. They understood the letter to mean
10 UNITED STATES v. WHITE
that they should stop pursuing their lawsuit and that, if they
did not, they would be in danger of harm.
About two weeks after mailing these letters, White bragged
on his radio show that he had given the plaintiffs in the HUD
lawsuit "a little bit of spooking with the haints." He explained
that the Klansmen after the Civil War would appear in robes
to make African-Americans believe they were being pursued
by the ghosts of Confederate soldiers so that, as White put it,
"the niggers got so terrified that they wouldn’t vote, they
wouldn’t do anything." Referencing the mailing to the HUD
plaintiffs, White continued, "that’s kind of what we’ve done
here."
Count 5: University of Delaware administrator Kathleen Kerr
In the fall of 2007, the University of Delaware initiated a
new "diversity training program" that attracted the attention of
the national media and also White. Kathleen Kerr, who was
the Director of Residential Life and played a major role in the
new program, was in a meeting when her assistant, Carol
Bedgar, received a telephone call for Kerr. The caller identi-
fied himself as "Commander Bill White of the American
White Workers’ Party." The caller asked to speak with Kerr,
and, after Bedgar informed him that Kerr was not in the
office, the caller said that he knew that she was there because
he had just spoken to her husband Chris. The caller then
recited Kerr’s home telephone number and a residential
address that Bedgar recognized as the address of Kerr’s father
in New Jersey. When Bedgar asked if she could take a mes-
sage, the caller replied, "Yes. Just tell her that people that
think the way she thinks, we hunt down and shoot." Accord-
ing to Bedgar, the caller delivered this message in a "cold"
and "dead sounding" tone of voice. Bedgar later testified that
after receiving the call, she sensed "evil" and began to pray
for safety. When advised of the call, Kerr broke down and
began to cry out of concern for her family and her family’s
safety.
UNITED STATES v. WHITE 11
(At trial, White disputed that he had been the caller. The
caller, however, identified himself to Bedgar as "Bill White,"
and telephone records showed that a telephone call had been
placed on that day from White’s home to Kerr’s office.)
Bedgar, Kerr, and the staff of the University of Delaware
took the call as a very serious threat and called the police.
Kerr and University officials were also alerted to White’s
website, "Overthrow.com," which has a post entitled "Univer-
sity of Delaware’s Marxist Thought Reform." The website
listed Kerr’s full name, email address, date of birth, home
telephone number listed as "confirmed," and father’s address
in New Jersey mistakenly calling it her husband’s address.
The website also listed the University President’s full name,
email address, date of birth, spouse’s name, spouse’s date of
birth, home address, vacation home address, and telephone
numbers. The website instructed readers to "go to their
homes," and beneath Kerr’s information were the words, "We
shot Marxists sixty years ago, we can shoot them again!" The
University’s Chief of Police also located another web entry
entitled "Smash the University of Delaware," which included
the personal information of Kerr and the University President
with the instruction, "You know what to do. Get to work!"
As a result of this telephone call and the website postings,
University of Delaware President Harker convened an emer-
gency meeting of the top administrators and law enforcement
officials at the University to discuss appropriate security mea-
sures in response to the threats. The FBI, local law enforce-
ment officers, and University police took the telephone call as
a serious threat, and law enforcement officers guarded Kerr
and her family at work and home for the next several days.
Kerr and her husband would not let their children play outside
for several weeks for fear of their safety, and Kerr’s father
was advised by police not to leave his house for several days,
to secure all doors, to cover all windows, and to cancel his
plans to participate in a community event.
12 UNITED STATES v. WHITE
Count 6: Richard Warman
Richard Warman is a Canadian civil rights lawyer who
actively fights "hate speech" in Canada and specifically tar-
gets white supremacist movements. He often brings cases
against neo-Nazi groups and their websites before the Canada
Human Rights Tribunal, which awards a "bounty" to individ-
uals who successfully bring such suits even if they were not
victims of the hate speech.
In July 2006, White sent a personal email to Warman,
lamenting the fact that the website of Alex Linder, a
well-known white supremacist, had been shut down by the
Canadian government and stating that Linder was "correct
when he says the assassination of Canadian Jews and the offi-
cials who bow to them would be an act of patriotism."
According to Warman, this email marked the beginning of a
"campaign of terror" that lasted for two years, during which
White repeatedly referred to Warman as a "Jew" and advo-
cated violence towards him, even championing his murder.
The only other direct contact made by White to Warman
occurred in October 2006 when White mailed a package to
Warman’s home address. The package contained one of
White’s magazines, which had a picture of Warman on the
back cover with the caption, "Yeah, We Beat This Prick."
Beneath the caption, Warman’s home address was printed
with the words, "Tired of the Jews taking away your rights?"
Several months later in February 2007, White published a
"work of fiction" on his website entitled "The Death of Robert
Waxman in the Not Too Distant Future," the original title of
which had been "The Death of Robert Warman . . . ." A dis-
claimer to this fictional story by White noted that "since it is
illegal to publish material like this in Canada, we are publish-
ing it here as a favor to our Canadian allies. May we all pray
that this work becomes something more [than] mere fiction."
The story described real cases in which Warman had been
UNITED STATES v. WHITE 13
involved and featured a protagonist smiling as he placed a
shotgun in Waxman’s mouth and pulled the trigger.
White continued to post comments about Warman through-
out the rest of 2007, repeatedly calling for his assassination
and posting his home address. None of the communications
during 2007, however, formed the basis for Count 6. The gov-
ernment introduced these pre-2008 communications only for
context. There were two communications that followed in
2008, however, which did form the basis for Count 6.
In the first, in February 2008, White posted on the Van-
guard News Network, a white supremacist website run by
Alex Linder, an article describing the firebombing of a Cana-
dian civil rights activist’s house by a neo-Nazi group and
wrote underneath the link, "Good. Now someone do it to
Warman." In the second, in March 2008, White posted an
entry on his own website entitled "Kill Richard Warman, man
behind human rights tribunal’s abuses should be executed."
The post began:
Richard Warman, the sometimes Jewish, sometimes
not, attorney behind the abuses of Canada’s Human
Rights Tribunal should be drug [sic] out into the
street and shot, after appropriate trial by a revolu-
tionary tribunal of Canada’s white activists. It won’t
be hard to do, he can be found easily at his home, at
[Warman’s home address].
The post described Warman’s use of Canada’s hate speech
laws against white supremacists and compared White’s calls
for the execution of Warman to the advocacy of other U.S.
citizens for the death of Osama Bin Laden. The post closed
with an "irreconcilable fact: Richard Warman is an enemy,
not just of the white race, but of all humanity, and he must be
killed. Find him at home and let him know you agree: [War-
man’s home address]."
14 UNITED STATES v. WHITE
In May, White reiterated this call, posting a blog entry enti-
tled "Kill Richard Warman" that included Warman’s home
address and the statement: "I do everything I can to make sure
everyone knows where to find this scum, particularly because
it makes him so mad: Kill Richard Warman! [Warman’s
home address]." This May 2008 communication also was not
a basis for Count 6, but was offered only for context.
Warman read these internet postings and, as he testified,
considered them to be "death threats." He took numerous
steps to ensure his safety and his family’s safety. He moved
to a new home, which he and his wife put in her maiden name
to hide it from the defendant; he removed all of his contact
information from public databases; he altered his personal
routine and stopped meeting his wife for lunch near her
office; he started receiving his mail at a post office box; he
had his wife register as a single mother when she gave birth
to their daughter; and he and his wife decided not to give his
daughter the Warman surname in order to protect her.
II
The jury convicted White on Counts 1, 5, and 6 for viola-
tions of 18 U.S.C. § 875(c), which criminalizes the interstate
transmission of "any threat to injure the person of another."
White filed a motion under Rule 29 for a judgment of acquit-
tal on these counts, arguing that his "threats" were political
hyperbole, and even though they were rude, they were pro-
tected by the First Amendment. Accordingly, they were not
"true threats" that could be punished under § 875(c). See
Watts v. United States, 394 U.S. 705 (1969).
The district court denied White’s Rule 29 motion as to
Counts 1 and 5, concluding that the government’s evidence
was more than sufficient for a rational trier of fact to find,
beyond a reasonable doubt, the essential elements of the
crimes charged. In reaching this conclusion, the court con-
strued § 875(c) to require a showing that the defendant specif-
UNITED STATES v. WHITE 15
ically intended to communicate a threat and not that the
defendant specifically intended to threaten the victims. The
court held that whether the communication contained a threat
did not depend on White’s subjective intent but had to be
determined by "the interpretation of a reasonable recipient
familiar with the context of the communication." (Quoting
United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994)).
While the district court recognized that the Supreme Court’s
decision in Virginia v. Black, 538 U.S. 343 (2003), which was
handed down after Darby, had been construed by at least one
court to require the showing of a specific, subjective intent to
threaten, leading to some confusion as to whether this court’s
holding in Darby remained good law, the court did not read
Black to require that showing, holding that "Black did not
effect a change in the law with regards to threats under 18
U.S.C. § 875(c) and that the reasonable recipient test as set
forth in Darby should continue to apply."
As to Count 6, the court granted White’s motion for judg-
ment of acquittal, concluding that, viewing the evidence in the
light most favorable to the prosecution, no rational finder of
fact could have found that a reasonable recipient of the com-
munications charged in Count 6, familiar with its context,
would have considered the communication "to be a serious
expression of an intent to commit an act of unlawful violence"
and therefore a "true threat," as required for a violation of §
875(c). (Quoting Black, 538 U.S. at 359).
White appealed the district court’s order denying his Rule
29 motion for judgment of acquittal on Counts 1 and 5, and
the government appealed the district court’s judgment grant-
ing White’s motion for judgment of acquittal on Count 6.
Both appeals raise the same question of whether White com-
municated "true threats" to injure an individual, in violation
of § 875(c).1
1
In a footnote to his brief on appeal, White also incorporates summarily
the arguments made by the ACLU’s amicus brief, where the ACLU chal-
16 UNITED STATES v. WHITE
In criminalizing the interstate transmission of any "commu-
nication" containing a threat to injure, 18 U.S.C. § 875(c)
criminalizes pure speech. Accordingly, such a provision must
be interpreted "with the commands of the First Amendment
clearly in mind." Watts, 394 U.S. at 707.
But even though the First Amendment protects speech
broadly, it does not prohibit the criminalization of a "true
threat" to injure a person. Id. True threats, like "fighting
words," see Chaplinsky v. New Hampshire, 315 U.S. 568
(1942), are words that "by their very utterance inflict injury,"
and the "prevention and punishment" of such threatening
speech "has never been thought to raise any Constitutional
problem." Id. at 571-72. "[P]rotecting individuals from the
fear of violence, from the disruption that fear engenders, and
from the possibility that the threatened violence will occur"
are fundamental concerns about the security and safety of
individual citizens that place "threats of violence . . . outside
the First Amendment." R.A.V. v. City of St. Paul, 505 U.S.
377, 388 (1992). Because true threats have the potential to
cause such harm and imperil the security of individual citi-
zens, the punishment of these threats "has traditionally coex-
isted comfortably with even a strong First Amendment." See
Fredrick Schauer, Intentions, Conventions, and the First
Amendment: The Case of Cross-Burning, 2003 Sup. Ct. Rev.
197, 211 (2003).
Thus, both White and the government agree that § 875(c)
can only be violated if the interstate communication contains
a "true threat" to injure a person. See United States v. Bly, 510
F.3d 453, 458-59 (4th Cir. 2007).
lenged the district court’s jury instructions on § 875(c) for not requiring
that the jury find specific intent. While we are not sure that White pre-
served a challenge to the district court’s instructions with respect to §
875(c), we would reach the same result on that issue as we do in reviewing
the district court’s order denying White’s Rule 29 motion.
UNITED STATES v. WHITE 17
In determining whether a statement is a "true threat," we
have employed an objective test so that we will find a state-
ment to constitute a "true threat" "if ‘an ordinary reasonable
recipient who is familiar with the context . . . would interpret
[the statement] as a threat of injury.’" United States v. Armel,
585 F.3d 182, 185 (4th Cir. 2009) (quoting United States v.
Roberts, 915 F.2d 889, 891 (4th Cir. 1990)); Darby, 37 F.3d
at 1066. The district court applied this objective test in deny-
ing White’s Rule 29 motion on counts 1 and 5.
White contends that the district court erred because the
Supreme Court’s description of a true threat in Black altered,
or even overruled, the objective standard that we have
applied. In Black the Court stated that "‘true threats’ encom-
pass those statements where the speaker means to communi-
cate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of indi-
viduals." 538 U.S. at 359. White argues that, based on this
statement, we should now hold "that Section 875(c) requires
proof of specific intent to threaten," as did the Ninth Circuit
in United States v. Cassel, 408 F.3d 622 (9th Cir. 2005),
where the court interpreted Black to require a subjective
showing that the speaker specifically intend that the recipient
of the threat feel threatened.
We are not convinced that Black effected the change that
White claims. A careful reading of the requirements of §
875(c), together with the definition from Black, does not, in
our opinion, lead to the conclusion that Black introduced a
specific-intent-to-threaten requirement into § 875(c) and thus
overruled our circuit’s jurisprudence, as well as the jurispru-
dence of most other circuits, which find § 875(c) to be a gen-
eral intent crime and therefore require application of an
objective test in determining whether a true threat was trans-
mitted.
Section 875(c) in essence makes it a crime to "transmit any
communication containing [a] threat to injure." (Emphasis
18 UNITED STATES v. WHITE
added). The physical act of the crime — the actus reus — is
the transmission of a communication, and the criminal intent
— the mens rea — is not explicitly specified. In Darby, we
applied general mens rea principles and rejected the defen-
dant’s contention that § 875(c) requires a showing of specific
intent that the recipient feel threatened. We held instead that,
in the absence of specific statutory language to the contrary,
§ 875(c) is presumed to be a general intent crime. Darby, 37
F.3d at 1066. Of course, a general intent crime does not
require that the defendant intend the precise purpose or results
of the crime but only that the defendant intentionally engage
in the actus reus of the crime, in this case the transmission of
a communication. See Carter v. United States, 530 U.S. 255,
268 (2000). Thus, under Darby, the government need not
prove that a defendant transmitted the communication with
the specific intent that the defendant feel threatened but only
with the general intent to transmit the communication. And
because the threat element is not part of the mens rea, it
becomes an element of the crime that must be established
without consideration of the defendant’s intent. Accordingly,
when determining whether the element of a true threat is
established, we look objectively to "the interpretation of a rea-
sonable recipient familiar with the context of the communica-
tion." Darby, 37 F.3d at 1066.
The statement in Black relied on by White is entirely con-
sistent with Darby. The Supreme Court in Black, which was
not focusing on § 875(c) but rather on a Virginia statute mak-
ing it a crime to burn a cross with the intent of intimidating
a person, stated that "true threats" "encompass those state-
ments where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence
to a particular individual or group of individuals." Black, 538
U.S. at 359 (emphasis added). We read the Court’s use of the
word "means" in "means to communicate" to suggest "intends
to communicate," so that the speaker must intend to commu-
nicate a threat, the general intent standard we applied in
Darby. The "threat," which is the object of the communica-
UNITED STATES v. WHITE 19
tion, is then defined to be the "serious expression of an intent
to commit an act of unlawful violence to a particular individ-
ual or group of individuals," which is simply the Court’s defi-
nition of a threat that falls outside of First Amendment
protection. But in defining a true threat, the Court gave no
indication it was redefining a general intent crime such as §
875(c) to be a specific intent crime. It was defining the neces-
sary elements of a threat crime in the context of a criminal
statute punishing intimidation. Moreover, the Court goes on
to imply the application of an objective test for finding a true
threat by focusing on the effect of the threat on the recipient.
The Court stated: "A prohibition on true threats protects indi-
viduals from the fear of violence and from the disruption that
fear engenders, in addition to protecting people from the pos-
sibility that the threatened violence will occur." Id. at 360
(internal quotation marks and alterations omitted).
With this understanding of what Black stated, we find the
Court’s statement entirely consistent with our holding in
Darby. And so did the district court when it rejected White’s
argument that Black introduced a subjective intent require-
ment into § 875(c). The district court stated:
A reading of Black that transforms "means to com-
municate" into "subjectively intended to threaten"
would require "communicate" to carry much more
weight than can reasonably be accorded to the basic
understanding of "communicate." It is a much more
reasonable conclusion that "means to communicate"
simply reiterates the requirement set forth in Darby
that "the defendant intended to transmit the interstate
communication." And, moreover, there is nothing in
the Black opinion to indicate that the Supreme Court
intended to overrule a majority of the circuits by
adopting a subjective test when dealing with true
threats.
Our conclusion does not yield to White’s expressed fears
about an unwitting regulation of wayward statements of jest
20 UNITED STATES v. WHITE
or political hyperbole. This is so because any such statements
will, under the objective test, always be protected by the con-
sideration of the context and of how a reasonable recipient
would understand the statement. Thus, while the speaker need
only intend to communicate a statement, whether the state-
ment amounts to a true threat is determined by the under-
standing of a reasonable recipient familiar with the context
that the statement is a "serious expression of an intent to do
harm" to the recipient. Black, 538 U.S. at 359. This is and has
been the law of this circuit, and nothing in Black appears to
be in tension with it.
In reaching this conclusion, we remain consistent with our
recent precedent in Armel, 585 F.3d at 185, where we also
applied the reasonable recipient test, even after Black, to
define a true threat. See also Bly, 510 F.3d at 457-59; United
States v. Lockhart, 382 F.3d 447, 451-53 (4th Cir. 2004);
United States v. McDonald, 444 F. App’x 710, 712 (4th Cir.
2011) (finding issue of whether § 875(C) requires specific
intent in light of Black settled in this circuit); United States v.
Corbett, 374 F. App’x 372, 380-81 (4th Cir. 2010). Indeed,
these precedents are binding and prohibit us from adopting
White’s argument, were we inclined to do so. See Etheridge
v. Norfolk & Western Ry., 9 F.3d 1087, 1090 (4th Cir. 1993).
Most other circuits also continue to apply an objective test
after Black, even though some courts focus on a "reasonable
sender" of the communication or simply a "reasonable per-
son" familiar with all the circumstances. See United States v.
Koski, 424 F.3d 812, 818-20 (8th Cir. 2005) (applying a "rea-
sonable recipient" test); Porter v. Ascension Parish Sch. Bd.,
393 F.3d 608, 616 & n.26 (5th Cir. 2004) (applying an "objec-
tively reasonable person" test); United States v. Fuller, 387
F.3d 643, 646 (7th Cir. 2004) (looking at how a "reasonable
person would foresee that the statement would be inter-
preted"); United States v. Zavrel, 384 F.3d 130, 135-36 (3d
Cir. 2004) (judging the speech from the standard of a "reason-
able person hearing . . . or receiving the communication");
UNITED STATES v. WHITE 21
United States v. Alaboud, 347 F.3d 1293, 1297-98 & n.3 (11th
Cir. 2003) (concluding that both a "reasonable listener" and a
"reasonable speaker" test amount to the same "reasonable per-
son" test); United States v. Nishniandize, 342 F.3d 6, 15 (1st
Cir. 2003) (applying a "reasonable recipient" test).
Only the Ninth Circuit’s decision in Cassel, 408 F.3d at
631-32, seems to have adopted a distinct subjective test in
light of Black, holding that after Black a subjective intent to
threaten is a necessary part of the definition of a true threat.
But even Cassel stands in doubt, as a later Ninth Circuit opin-
ion applied the objective test. See United States v. Romo, 413
F.3d 1044 (9th Cir. 2005). Moreover, subsequent Ninth Cir-
cuit opinions have recognized the inconsistency between Cas-
sel and Romo. See Fogel v. Collins, 531 F.3d 824, 831 (9th
Cir. 2008); United States v. Stewart, 420 F.3d 1007, 1017-18
(9th Cir. 2005). Most recently, the Ninth Circuit now appears
to be retreating from Romo. See United States v. Bogdasarian,
652 F.3d 1113, 1117 & n.14 (9th Cir. 2011).
The dissent, relying almost wholly on the Ninth Circuit’s
opinion in Cassel and a student law review note, contends that
Black does indeed impose a specific intent requirement on §
875(c). The dissent argues that because "a majority of the Jus-
tices [in Black] viewed proof of an intent to intimidate as con-
stitutionally necessary to convict an individual of cross
burning without violating the First Amendment," § 875(c)
must have a specific intent requirement. Post at 42. The dis-
sent, however, takes the Black Court’s observations out of the
context of the Virginia statute that was before it. When the
Court’s discussion is given context, it is clear that the discus-
sion that the dissent is referring to was not addressing any
requirement of a specific intent mens rea for true threats, but
rather a specific intent element that existed in the Virginia
statute, as well as the aspect of the statute that presumed the
element to be satisfied by simply proving that a cross had
been burned.
22 UNITED STATES v. WHITE
The Virginia statute at issue in Black punished the burning
of a cross "with the intent of intimidating any person," and
provided that "such burning of a cross shall be prima facie
evidence of an intent to intimidate a person." Black, 538 U.S.
at 348 (quoting Va. Code Ann. § 18.2-423 (1996)). Recogniz-
ing that simply burning a cross without the intimidation ele-
ment could not be criminalized, id. at 365, the Black Court,
through various opinions, addressed how the intimidation ele-
ment could be satisfied. At bottom, however, eight Justices
recognized that the intimidation element was necessary to ren-
der the cross burning statute constitutional.
Section 875(c), however, addresses actual threats and not
cross burning, and while cross burning would need an element
of intimidation to be even considered a true threat, a true
threat to injure a person can be criminalized without more.
The dissent’s efforts to apply Black’s statements about the
need to establish the intimidation element in the cross burning
statute to a statute criminalizing true threats are simply based
on a misunderstanding of the discussion in Black and the sub-
ject it addressed. While the Black discussion was indeed con-
cerned with the fact that criminalizing cross burning without
proof of any intent to intimidate would be unconstitutional,
the Court did not engage in any discussion that proving true
threats as used in § 875(c) or in similar statutes required a
subjective, rather than objective, analysis. See United States
v. Mabie, 663 F.3d 322, 332 (8th Cir. 2011) ("Notably, the
Black Court did not hold that the speaker’s subjective intent
to intimidate or threaten is required in order for a communica-
tion to constitute a true threat. Rather, the Court determined
that the statute at issue in Black was unconstitutional because
the intent element that was included in the statute was effec-
tively eliminated by the statute’s provision rendering any
burning of a cross on the property of another prima facie evi-
dence of an intent to intimidate").
In short, cross burning can be protected speech, and there-
fore it must be accompanied by an intent to intimidate to be
UNITED STATES v. WHITE 23
the subject of a constitutionally acceptable criminal statute. A
true threat to injure a person, however, standing alone, is not
protected speech and can be the subject of a constitutionally
acceptable criminal statute that requires only a general intent
mens rea.
Also, in its arguments to find a specific intent requirement
in § 875(c), the dissent fails to recognize that First Amend-
ment principles distinguish protected speech from unprotected
speech based on an objective view of the speech, not its mens
rea. See FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 468
(2007) ("[U]nder well-accepted First Amendment doctrine, a
speaker’s motivation is entirely irrelevant to the question of
constitutional protection" (quoting Martin H. Redish, Money
Talks: Speech, Economic Power, and the Values of Democ-
racy 91 (2001)). Failing to recognize this clear language of
the Supreme Court to the contrary, the dissent argues that
"imposing such a specific-intent-to-threaten requirement . . .
has a sound basis in First Amendment jurisprudence," post at
47, citing in support the actual malice standard for the defa-
mation of public officials set forth in New York Times v. Sulli-
van, 376 U.S. 254 (1964) and the test for advocacy for
unlawful conduct set forth in Brandenburg v. Ohio, 395 U.S.
444 (1969) (per curiam). From these decisions, the dissent
concludes that "[t]he First Amendment, therefore, imposes
heightened, subjective mens rea requirements in certain con-
texts." Post at 48. These cases, however, do not support the
dissent’s argument.
The "actual malice" standard in New York Times only
requires "knowledge" of a statement’s falsity or a "reckless
disregard" for the truth and in no way requires that the
speaker have a specific intent to harm the reputation of an
individual with his speech. New York Times, 376 U.S. at 254;
see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
510 (1991) ("Actual malice under the New York Times stan-
dard should not be confused with the concept of malice as an
evil intent or a motive arising from spite or ill will"). Simi-
24 UNITED STATES v. WHITE
larly, the Brandenburg test only requires that the speaker use
specific words advocating unlawful conduct. It does not
require that the speaker have a specific intent to incite unlaw-
ful conduct. See Schauer, supra, at 220 ("Brandenburg may
be best interpreted as not incorporating a distinct First
Amendment-rooted intent requirement, although of course it
will usually be the case that a person intends the ordinary
meaning and natural consequences of the words he uses").
Indeed, the Supreme Court has made clear that the Branden-
burg test should be evaluated using the objective facts sur-
rounding the speech and should not be focused on a speaker’s
subjective purpose for speaking. See Brandenburg, 395 U.S.
at 447 (reviewing the objective circumstances of the rally and
the speeches); see also Texas v. Johnson, 491 U.S. 397, 409
(1989) ("[W]e have . . . required careful consideration of the
actual circumstances surrounding such expression, asking
whether the expression ‘is directed to inciting or producing
imminent lawless action and is likely to incite or produce such
action’"); N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.
886, 927-29 (1982) (evaluating how the words of the speaker
"might have been understood" in looking to the objective cir-
cumstances "whether or not proper discipline was specifically
intended").
For these reasons, we find unpersuasive the dissent’s argu-
ment to read Black as changing the mens rea requirements
applying to § 875(c). Every court of appeals (except the Ninth
Circuit) has applied and continues to apply § 875(c) with an
objective standard for determining whether the object of a
communication was a true threat.
Accordingly, we affirm the district court’s interpretation of
§ 875(c) in denying White’s Rule 29 motion.
III
The question of whether White’s communications to Pets-
che, Kerr, and Warman were true threats, as defined in Darby
UNITED STATES v. WHITE 25
and Black, is a jury question. United States v. Roberts, 915
F.2d 889, 891 (4th Cir. 1990). Thus, we determine whether,
viewing the evidence in the light most favorable to the gov-
ernment, there was sufficient evidence "to decide that a rea-
sonable recipient would interpret [White’s communication] as
a threat." United States v. Floyd, 458 F.3d 844, 849 (8th Cir
2006).
Count 1: Petsche
With respect to Count 1, the government demonstrated that
White had paid money to locate a large amount of personal
information about Petsche, and White so advised Petsche.
White, expressing frustration in his relations with Citibank,
specifically threatened in an email that White would act if
Petsche did not respond quickly, concluding the email by
comparing Petsche to Judge Lefkow, whose relatives had
been murdered. Any reasonable recipient of this email would
have taken it as a threat of violence. See Floyd, F.3d at 849
(holding that the anonymous mailing of a newspaper about
Judge Lefkow to judicial officers with words "be aware be
fair" constituted a true threat). Moreover, Petsche, as well as
other Citibank employees, security officers, and law enforce-
ment officers took White’s email as a serious threat, providing
corroborating evidence of how the threat would be taken by
a reasonable person. See Roberts, 915 F.2d at 891 (holding
the jury’s verdict was supported by evidence that "both Jus-
tice O’Connor’s secretary and the Supreme Court police took
the letter quite seriously as did the FBI"). We conclude that
the evidence amply supports White’s conviction on Count 1.
Count 5: Kerr
Again we conclude that the evidence amply supports
White’s conviction on Count 5. In opposing a diversity train-
ing program initiated at the University of Delaware, White
called Kerr’s office and left a message that people who
thought the way that Kerr thought were hunted down and
26 UNITED STATES v. WHITE
shot. The delivery of the message carried a serious tone and
was taken seriously. Again Kerr, her husband, the officials at
Delaware University, and law enforcement agencies took the
call, in the context of White’s public opposition to Delaware’s
program, to be a serious expression of intent to harm Kerr,
providing corroborating evidence of how the threat would be
taken by a reasonable recipient familiar with the context.
Count 6: Richard Warman
White’s communications directly and indirectly to Richard
Warman were part of a protracted campaign to oppose War-
man’s work in Canada, fighting neo-Nazi and white suprem-
acy groups. Except for the two communications charged in
Count 6, however, these communications were presented only
as context, and as context, they were insufficient to elevate
the communications in Count 6 to true threats.
The first of the two communications forming the basis for
the conviction on Count 6 was a February 8 posting on a web-
site that referenced the recent firebombing of a Canadian civil
rights activist’s house with the subscript, "Good. Now some-
one do it to Warman." The second, in March 2008, was again
a posting on White’s website indicating that Warman "should
be drug [sic] out into the street and shot." It also asserted that
"Richard Warman is an enemy, not just to the white race but
of all humanity and he must be killed." These communica-
tions clearly called for someone to kill Richard Warman. But
neither communication actually provided a threat from White
that expressed an intent to kill Warman. While a direct threat
of that type would not always be necessary, for White to have
called on others to kill Warman when the others were not
even part of White’s organization, amounted more to political
hyperbole of the type addressed in Watts than to a true threat.
Moreover, the two communications forming the basis for
Count 6 were posted to neo-Nazi websites and not sent
directly to Warman.
UNITED STATES v. WHITE 27
While a direction to others to kill Warman could have
amounted to a threat if White had some control over those
other persons or if White’s violent commands in the past had
predictably been carried out, none of that context exists in this
case. In short, the communications that formed the basis of
Count 6 were expressions not directed to Warman but to the
public generally and did not communicate an intent to take
any action whatsoever. In these circumstances, we agree with
the district court that the communications fell short of being
true threats.
The government argues that a communication does not
have to be given or sent directly to the threatened individual
to be a true threat, citing to United States v. Lockhart, 382
F.3d 447 (4th Cir. 2004), where we upheld a conviction under
a different threat statute after the defendant delivered a letter
to a grocery store threatening to kill the President. See
also Floyd, 458 F.3d at 849; United States v. Dinwiddie, 76
F.3d 913, 925-26 & n.9 (8th Cir. 1996). While the govern-
ment is correct in noting that neither direct communication
nor personal or group involvement in the threat is an essential
component to finding a true threat, the lack of both, along
with the fact that White’s language was clearly directed to
others in the form of advocacy, makes it impossible for us to
conclude that a reasonable recipient would understand
White’s communications to be serious expressions of intent to
commit harm.
The government argues further that the context in which
White’s statements were made elevates the statements and
makes up for the lack of a direct threat to commit harm. It
points to White’s earlier references to actual violence, such as
firebombing of an activist’s house, and the violent edge that
accompanied all of White’s statements. The government
argues that these public statements were made relevant to
Warman and were specifically designed to threaten Warman.
But even taking into account the context created by these ear-
lier communications, we cannot conclude that a reasonable
28 UNITED STATES v. WHITE
recipient would believe that White’s two communications
advocating violence to Warman expressed an intent to harm
Warman. The principal message expressed in White’s com-
munications was that someone else should kill Warman.
While the two communications for which White was
indicted, along with the context surrounding them, may have
undoubtedly frightened Warman, those communications at
most conveyed a serious desire that Warman be harmed by
others but did not convey a serious expression of intent to do
harm from the perspective of a reasonable recipient. Accord-
ingly, we affirm the district court’s judgment of acquittal on
Count 6.2
IV
White contends that the district court erred also in denying
his Rule 29 motion for judgment of acquittal on Count 3,
where he is charged with intimidation to influence, delay, and
prevent the testimony of African-American tenants in Vir-
ginia Beach against their landlord by mailing intimidating let-
ters to the tenants, in violation of 18 U.S.C. § 1512(b)(1).
White argues that in order for § 1512 to be applied constitu-
tionally, the evidence of intimidation must rise to the level of
a "true threat" and that the evidence in this case did not sup-
port proof of a true threat. As he claims:
Section 1512(b)(1) requires proof of "intimidation,"
2
With respect to Count 6, White also contends that the indictment varied
materially from the communication relied on to prove guilt. The indict-
ment referred to a communication sent "on or about February 26, 2008,"
whereas the only communication proved was a communication dated
March 26, 2008. The government admits that the indictment contained an
error stating February instead of March, but it pointed out the error before
trial, and both parties conducted the trial with the understanding that the
March 26 communication was the basis of the charge. We need not, how-
ever, resolve this question in view of the fact that we are affirming the dis-
trict court’s judgment of acquittal on Count 6.
UNITED STATES v. WHITE 29
which the Supreme Court has held to mean, in the
constitutionally proscribable sense, "a type of true
threat, where a speaker directs a threat to a person or
group of persons with the intent of placing the victim
in fear of bodily harm or death."
(Quoting Black, 538 U.S. at 344). He asserts that because the
letters did not put the recipients in fear of bodily harm, a vio-
lation of § 1512 was not established.
White’s reference to Black is, however, inapt. The Court in
Black was addressing a Virginia cross-burning statute that
prohibited substantively the conduct of intimidation in the
form of cross-burning. The object of § 1512(b), however, is
to protect testimony in an official proceeding by prohibiting
intimidation undertaken "to influence, delay, or prevent the
testimony." 18 U.S.C. § 1512(b)(1). "[S]peech is not pro-
tected by the First Amendment when it is the very vehicle of
the crime itself." United States v. Varani, 435 F.2d 758, 762
(6th Cir. 1970) (citing bribery, perjury, and threats as exam-
ples).
In this case the jury found that the defendant knowingly
used intimidation, in the form of the letters, with the intent to
affect the tenants’ prosecution of their lawsuit alleging racial
discrimination against their landlord. We find no First
Amendment problem with such a finding.
Moreover, the evidence readily supports the jury’s finding.
Accordingly, we affirm the district court’s order denying
White’s Rule 29 motion on Count 3.3
3
White also claims that there was a constructive amendment in Count
3 in that the indictment alleged the mailing of "letters containing intimi-
dating language" whereas the government introduced not only letters but
magazines that were included in the packages with the letters. This argu-
ment is without merit, however. In setting forth the facts of Count 3, the
indictment refers to both the letters and the magazines, charging:
30 UNITED STATES v. WHITE
V
The government has appealed the sentence that the district
court imposed on White, contending that the court erred in
calculating White’s offense level because it applied an out-
dated legal standard in denying the government’s request for
a two-level adjustment based on the victims’ vulnerability, as
provided in U.S.S.G. § 3A1.1(b)(1). The government objected
to the presentence report’s rejection of the enhancement and
asked the court for the two-level upward adjustment. The gov-
ernment based its request on the facts that White had
addressed the packages sent to Reddick’s residence to her two
minor children and that White was apparently aware that the
children were minors because they were so identified in the
HUD complaint and the allegations of the complaint referred
to the children "playing outside."
The probation officer rejected the government’s request for
a vulnerable victim adjustment, reasoning:
In order to apply an enhancement for vulnerable vic-
tim the court must make two findings. First, the
court must conclude that the victim was unusually
vulnerable, and, second, that the defendant targeted
the victim because of the victim’s unusual vulnera-
bility. In most cases, a minor — someone under the
age of 18 years, may be considered a vulnerable vic-
On or about May 25, 2007, the African-American Virginia
Beach, Virginia, tenants each received William A. White’s May
23, 2007 letter in their Virginia Beach, Virginia, home mail-
boxes. These letters were delivered in envelopes bearing the
name and address of each African-American tenant recipient.
Included in the envelope was an ANSWP Magazine, emblazoned
with a swastika and entitled ’The Negro Beast and Why Blacks
Who Work Aren’t Worth the Cost of Welfare.’ The magazine
contains numerous articles espousing extreme white suprema-
cists’ viewpoints.
UNITED STATES v. WHITE 31
tim, depending on the exact age of the minor and the
circumstances of the offense. There is no evidence
that White knew the ages of the minor children of
Tasha Reddick, whether they were infants or 17
years of age, or somewhere in between, only that
they were minors as identified in the suit . . . . How-
ever, the second prong of the test, that the defendant
targeted the victim because of the victim’s age can-
not be met, even by a preponderance of the evidence.
The facts of the case suggest that White targeted the
victim, not because of their age, but because of their
race and the fact that they were listed as a charging
party in the HUD discrimination suit.
(Emphasis added). The district adopted this finding.
Beginning in 1995, however, it became "unnecessary for a
sentencing court to find that a defendant had specifically tar-
geted his victim," the second and dispositive factor cited by
the presentence report. United States v. Bolden, 325 F.3d 471,
500 n.35 (4th Cir. 2003). Under the current test, a court must
first "determine that a victim was unusually vulnerable" and,
second, "assess whether the defendant knew or should have
known of such unusual vulnerability." United States v. Lla-
mas, 599 F.3d 381, 388 (4th Cir. 2010). Thus, the district
court erred by adopting the outdated "targeting test" applied
in the presentence report and made no finding regarding
whether White knew or should have known of his victims’
vulnerability.
Relevant to the current test, the government did present evi-
dence that White knew or should have known of the vulnera-
bility of the victims of his threat. It submitted evidence that
White had read the tenants’ HUD complaint, which described
how Reddick’s children were called "nigger children" by the
landlord and three times referenced the fact that Reddick’s
children "were playing outside," indicating their youth. The
government argues that White knew that the children were
32 UNITED STATES v. WHITE
minors also because they were classified as such when listed
as parties to the complaint. The fact that White might be able
to demonstrate that he did not know the specific ages of the
children would not be dispositive. The relevant question is
whether White knew or should have known of the children’s
vulnerability. While a specific age can be a proxy for such
vulnerability, it is not essential. In short, there was evidence
in the record that the district court should have considered
when applying the correct legal standard.
Accordingly, we vacate White’s sentence and remand for
resentencing.4
***
In sum, we affirm White’s convictions, vacate his sentence,
and remand for resentencing in accordance with this opinion.
CONVICTION AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED FOR RESENTENCING
DUNCAN, Circuit Judge, concurring:
I am pleased to join the excellent majority opinion in its
entirety. I write separately for the purpose of emphasizing a
few points I find particularly significant.
I begin with the foundational principle that "a panel of this
court cannot overrule, explicitly or implicitly, the precedent
set by a prior panel of this court. Only the Supreme Court or
this court sitting en banc can do that." Mentavlos v. Anderson,
249 F.3d 301, 312 n.4 (4th Cir. 2001). Here, the dissent con-
4
The government also alleges that the presentence report incorrectly cal-
culated White’s offense level under U.S.S.G. § 3D1.4, finding it to be 16,
rather than 17. While our review indicates that the offense level appears
to have been improperly calculated, we have not addressed the point in
view of our remand. But if the government wishes to reargue this point to
the district court on remand, we leave that issue open for that possibility.
UNITED STATES v. WHITE 33
tends that Virginia v. Black, 538 U.S. 343 (2003), constitutes
a "superseding contrary decision" that requires this circuit to
reexamine our definition of a "true threat." Post at 39. I can-
not agree. As I explain below, Black is not contrary to, and
therefore does not overrule, our prior precedent that directly
addresses the issue presented. We do not lightly presume that
the law of the circuit has been overturned. See United States
v. Jeffery, 631 F.3d 669, 676-78 (4th Cir. 2011) (adhering to
our precedent when a subsequent Supreme Court decision did
not directly overrule it); United States v. Brooks, 524 F.3d
549, 559-60 (4th Cir. 2008) (same). Such a presumption
would be particularly inappropriate where, as here, the
Supreme Court opinion and our precedent can be read harmo-
niously. Supporting my conclusion that Black did not overrule
Darby is the fact that, in three published opinions issued after
Black, we have considered whether an appellant’s communi-
cations were punishable as a true threat without imposing a
specific intent requirement. United States v. Armel, 585 F.3d
182, 185 (4th Cir. 2009); United States v. Bly, 510 F.3d 453,
458-59 (4th Cir. 2007) (quoting Black); United States v. Lock-
hart, 382 F.3d 447, 451-52 (4th Cir. 2004). That our court has
not modified our general intent standard, despite having had
at least three post-Black opportunities to consider whether that
case required reexamination of our precedent, indicates that
Black did not overturn Darby or its progeny, nor did it create
a new standard for true threats to be applied across the board.
Therefore, in deciding this case, we are bound by our court’s
prior holdings.
Even if that were not the case, however, I believe the dis-
sent’s understanding of Black is demonstrably incorrect. By
interpreting Black to require a showing that a person specifi-
cally intended to threaten a victim in every statute that pun-
ishes threatening communications, the dissent overlooks the
fact that the Virginia statute at issue in that case explicitly
made it unlawful to burn a cross "with the intent of intimidat-
ing any person or group of persons." 538 U.S. at 348. Thus,
the Supreme Court’s statements that "’[t]rue threats’ encom-
34 UNITED STATES v. WHITE
pass those statements where the speaker means to communi-
cate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of indi-
viduals" and that "[i]ntimidation . . . is a type of true threat,
where a speaker directs a threat to a person or group of per-
sons with the intent of placing the victim in fear of bodily
harm or death" are properly read, in context, to be addressing
a specific intent statute that requires, as an element of the
offense, a specific intent to intimidate. The statute at issue
here, 18 U.S.C. § 875(c), includes no such specific intent
requirement.
As both the majority and the dissent recognize, most of our
sister circuits have continued to analyze true threats as requir-
ing only a showing of a general intent to communicate a mes-
sage that objectively contains a true threat. The Ninth Circuit
alone has held that "the subjective test set forth in Black must
be read into all threat statutes that criminalize pure speech."
United States v. Bagdasarian, 652 F.3d 1113, 1117 (9th Cir.
2011). The case in which the Ninth Circuit first announced its
interpretation of Black, United States v. Cassel, 408 F.3d 622
(9th Cir. 2005), however, like the dissent here, failed to recog-
nize that the Supreme Court’s language explaining the mean-
ing of a true threat and of intimidation was written in the
context of a statute that included a specific intent element.*
*Moreover, regardless of the Ninth Circuit’s recent attempt to stream-
line its jurisprudence in Bagdasarian, its case law has not been consistent
post-Black. See United States v. Sufcliffe, 505 F.3d 944, 961-62 (9th Cir.
2007) (declining to hold that jury instructions outlining an objective test
were erroneous "[g]iven our contradictory case law on this issue"); United
States v. Romo, 413 F.3d 1044, 1051 n.6 (9th Cir. 2005) (stating that Cas-
sel did not affect the objective analysis used to determine whether a threat
directed toward the president constituted a true threat); see also United
States v. Stewart, 420 F.3d 1007, 1018 (9th Cir. 2005) ("We are not fully
convinced that Romo properly distinguished Cassel, or that Romo’s con-
tinued use of the objective ’true threat’ definition is consistent with
Black’s subjective ’true threat’ definition.").
UNITED STATES v. WHITE 35
See id. at 631. The Supreme Court gave no indication that it
intended these definitions to apply outside the context of a
specific intent statute—thus leaving our pre-Black jurispru-
dence, as we have implicitly recognized, untouched.
I conclude by addressing the dissent’s concern that declin-
ing to impose a specific intent requirement upon every statute
punishing threatening language will result in speakers being
held criminally liable for "violent and extreme rhetoric" that
does not reach the level of a true threat. Post at 46. If any-
thing, the facts of the case before us demonstrate the contrary.
Indeed, based on instructions following our standard from
United States v. Darby, 37 F.3d 1059 (4th Cir. 1994), a jury
acquitted appellant White of three counts charging him with
violations of § 875(b) and (c)—despite the fact that most
would find the messages contained in the charged communi-
cations to be "violent and extreme." Moreover, the district
court acquitted White of an additional count as a matter of
law, finding that his exhortations that a Canadian civil rights
lawyer should be killed were protected speech—and we
affirm. Thus, this record presents no basis for the dissent’s
fear that maintaining our current true threat standard will pun-
ish the undeserving.
For these reasons, I fully concur in the majority’s conclu-
sion that, when the venom spewed by White reaches a level
such that a reasonable recipient would perceive it to be a true
threat, the First Amendment affords him no protection.
FLOYD, Circuit Judge, concurring in part and dissenting in
part:
Although we have traditionally adhered to a purely objec-
tive test for determining when a communication constitutes a
true threat, the Supreme Court, in my opinion, imposed a spe-
cific intent requirement in Virginia v. Black, 538 U.S. 343
(2003). This superseding Supreme Court decision requires us
to depart from our precedent and include a subjective compo-
36 UNITED STATES v. WHITE
nent in our true-threats analysis. Since Black, however, we
have continued to utilize only an objective test. See United
States v. Armel, 585 F.3d 182, 185 (4th Cir. 2009). But in
doing so we have not addressed whether Black requires us to
revisit our true-threats test. So the issue remains open.
Because I think Black mandates that the speaker must specifi-
cally intend to threaten the victim for a communication to
constitute a true threat, I respectfully dissent in part from the
majority opinion.
I.
William White challenges, among other things, his convic-
tions under Counts 1 and 5, which charged him with violating
18 U.S.C. § 875(c). Section 875(c) proscribes "transmit[ting]
in interstate . . . commerce any communication containing any
threat to kidnap any person or any threat to injure the person
of another." Id.
White contends that the district court erred in its jury
instruction regarding what the government must prove to
obtain a conviction under this statute.1 Specifically, he con-
tends the district court made an error of law when it charged
the jury that, for the communications at issue to constitute
true threats, the government did not have to prove that he sub-
1
White’s brief, in addressing this issue, does not specify whether he is
challenging the jury instructions or the denial of his motion for judgment
of acquittal. But, in his brief, he expressly incorporates the arguments
made by the American Civil Liberties Union of Virginia, Inc. (ACLU) in
its amicus brief. The ACLU clearly asserts error as to both the jury
instructions and the denial of the motion for judgment of acquittal. So I
consider the issue concerning the erroneous jury instruction preserved and
properly before us on appeal. Rather than reviewing whether substantial
evidence exists to support the jury’s verdict, as we do when reviewing the
denial of a motion for judgment of acquittal, see United States v. Hackley,
662 F.3d 671, 678 (4th Cir. 2011), it strikes me as more appropriate to
determine first whether the jury convicted White pursuant to a proper jury
instruction, for if not, that would require us to vacate his convictions. I
therefore will address the alleged error as to the jury instruction.
UNITED STATES v. WHITE 37
jectively intended for the victims to understand them as
threats, only that a reasonable recipient would deem them to
be threats.
Our review of a district court’s jury instructions is for abuse
of discretion. United States v. Lighty, 616 F.3d 321, 366 (4th
Cir. 2010). "By definition, a court ‘abuses its discretion when
it makes an error of law.’" United States v. Ebersole, 411 F.3d
517, 526-27 (4th Cir. 2005) (quoting United States v.
Prince-Oyibo, 320 F.3d 494, 497 (4th Cir. 2003)). For the fol-
lowing reasons, I think the district court made an error of law
when it instructed the jury that the government did not need
to prove that White specifically intended to threaten the vic-
tims for the communications at issue to constitute true threats.
II.
We must interpret statutes that criminalize pure speech con-
sistently with the strictures of the First Amendment. Watts v.
United States, 394 U.S. 705, 707 (1969) (per curiam). As §
875(c) criminalizes threatening speech, we must interpret it in
a manner that distinguishes "[w]hat is a threat . . . from what
is constitutionally protected speech." Id.
A.
We have previously outlined what the government must
prove to establish a violation of § 875(c). See United States
v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994). In interpreting
§ 875(c), we held that it creates a general-intent crime, requir-
ing proof of only a "general intent to threaten." Id. We
rejected the argument that the statute imposes a specific intent
requirement. Id. at 1062-66. We provided that "to establish a
violation of [§] 875(c), the government must establish that the
defendant intended to transmit the interstate communication
and that the communication contained a true threat." Id. at
1066.
38 UNITED STATES v. WHITE
"True threats" constitute one of the "well-defined and nar-
rowly limited classes of speech, the prevention and punish-
ment of which have never been thought to raise any
Constitutional problem." Chaplinsky v. New Hampshire, 315
U.S. 568, 571-72 (1942); see also Black, 538 U.S. at 358-59
(recognizing that true threats constitute one of the proscrib-
able classes of speech described in Chaplinsky). Such speech
is "of such slight social value as a step to truth that any benefit
that may be derived from [it] is clearly outweighed by the
social interest in order and morality." Id. at 572. More specifi-
cally, our interest in "protecting individuals from the fear of
violence, from the disruption that fear engenders, and from
the possibility that the threatened violence will occur" out-
weighs whatever negligible social value that speech constitut-
ing true threats may promote. R. A. V. v. City of St. Paul, 505
U.S. 377, 388 (1992). For that reason, true threats fall "out-
side the First Amendment." Id. Thus, our requirement that to
obtain a conviction under § 875(c) the communication must
contain a true threat is of constitutional significance because
the State can proscribe such speech without violating the First
Amendment. See Black, 538 U.S. at 359.
We have traditionally employed an objective test for deter-
mining whether a communication constitutes a true threat.
Under this test, if a reasonable recipient familiar with the con-
text of the communication would understand it to be a threat,
it is a true threat. See Darby, 37 F.3d at 1066; United States
v. Roberts, 915 F.2d 889, 890-91 (4th Cir. 1990); United
States v. Maisonet, 484 F.2d 1356, 1358 (4th Cir. 1973). This
test is purely objective, as we have disavowed any require-
ment that the government "prove . . . the defendant subjec-
tively intended for the recipient to understand the
communication as a threat." Darby, 37 F.3d at 1066.
Our court’s precedent is, therefore, abundantly clear that
neither § 875(c) nor the First Amendment imposes a require-
ment that the government prove the speaker specifically
intended to threaten the victim. This precedent, of course,
UNITED STATES v. WHITE 39
binds us unless it has been overruled by a superseding con-
trary Supreme Court decision. See United States v. Rivers,
595 F.3d 558, 564 n.3 (4th Cir. 2010); Etheridge v. Norfolk
& W. Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993). As I shall
explain, I think the Supreme Court has issued a superseding
contrary decision that requires us to depart from this prece-
dent to the extent it does not require the government to prove
a specific intent to threaten for a communication to constitute
a true threat.
B.
The Supreme Court’s 2003 decision in Virginia v. Black is
a superseding contrary decision that makes our purely objec-
tive approach to ascertaining true threats no longer tenable.
At issue in Black were three defendants’ convictions under
a Virginia statute that criminalized cross burning committed
"with the intent of intimidating." 538 U.S. at 348 (internal
quotation marks omitted). The statute included a provision
stating that the act of burning a cross constituted, on its own,
"prima facie evidence of an intent to intimidate." Id. (internal
quotation marks omitted). Accordingly, one of the defendants
had been convicted pursuant to a jury instruction that charged,
"[T]he burning of a cross by itself is sufficient evidence from
which you may infer the required intent." Id. at 349 (internal
quotation marks omitted). With respect to the other two
defendants, one pleaded guilty and the other’s conviction was
obtained without the jury being instructed as to the prima
facie evidence provision. Id. at 350-51.
After recounting the history and various purposes of cross
burning as associated with the Ku Klux Klan, the Court
explained why true threats do not garner First Amendment
protections and may be proscribed. Id. at 359-60. It defined
true threats as follows: "‘True threats’ encompass those state-
ments where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence
40 UNITED STATES v. WHITE
to a particular individual or group of individuals." Id. at 359.
The Court clarified that the speaker does not need to intend
to carry out the threat, recognizing, as it had previously, that
the State may proscribe true threats to "protect[ ] individuals
from the fear of violence and from the disruption that fear
engenders, in addition to protecting people from the possibil-
ity that the threatened violence will occur." Id. at 359-60
(quoting R. A. V., 505 U.S. at 388) (internal quotation marks
omitted). The Court further explained that "[i]ntimidation in
the constitutionally proscribable sense of the word is a type of
true threat, where a speaker directs a threat to a person or
group of persons with the intent of placing the victim in fear
of bodily harm or death." Id. at 360.
The Court held that "Virginia’s statute does not run afoul
of the First Amendment insofar as it bans cross burning with
intent to intimidate." Id. at 362. Drawing on its decision in R.
A. V. v. City of St. Paul, in which it noted that content-based
discrimination is permissible "[w]hen the basis for the content
discrimination consists entirely of the very reason the entire
class of speech at issue is proscribable," 505 U.S. at 388, the
Court reasoned that "[t]he First Amendment permits Virginia
to outlaw cross burnings done with the intent to intimidate
because burning a cross is a particularly virulent form of
intimidation," 538 U.S. at 363. This emphasis on intent is not
mere surplusage. Intimidation is constitutionally proscribable
as a true threat, the Court had explained, only when the
speaker makes the communication "with the intent of placing
the victim in fear of bodily harm or death." Id. at 360.
Accordingly, for a statute proscribing intimidation to fall
within R. A. V.’s exception for permissible content-based dis-
crimination, it would need to require proof of a specific intent
to make the victim fearful, not just evidence that the cross
burning had that effect.
Although the majority then splintered on the constitutional-
ity of Virginia’s prima facie evidence provision, a majority of
the Justices agreed that proof of an intent to intimidate was
UNITED STATES v. WHITE 41
constitutionally necessary for the Commonwealth to proscribe
cross burning. A plurality2 argued that the prima facie evi-
dence provision was facially unconstitutional because it
"strip[ped] away the very reason why a State may ban cross
burning with the intent to intimidate" by obviating the Com-
monwealth’s requirement to prove an intent to intimidate. Id.
at 365 (plurality opinion). Recognizing that an individual can
burn a cross with the intent to intimidate or to make an ideo-
logical statement, the plurality asserted that the prima facie
evidence provision chilled core political speech by making it
possible for Virginia to charge and convict someone who
burned a cross with the intent to make an ideological state-
ment rather than to intimidate. Id.
Justice Scalia, despite disagreeing with the plurality that the
prima facie evidence provision was facially unconstitutional,
agreed that one of the defendant’s convictions had to be
vacated because the jury was instructed that it could infer an
intent to intimidate from the act of cross burning alone. Id. at
379-80 (Scalia, J., concurring in part, concurring in the judg-
ment in part, dissenting in part). Finally, Justice Souter, joined
by Justice Kennedy and Justice Ginsburg, argued that the
entire Virginia statute, not just the prima facie evidence provi-
sion, constituted impermissible content-based discrimination
and should be struck down. Id. at 380-81, 387 (Souter, J., con-
curring in the judgment in part, dissenting in part). Like the
plurality, however, he asserted that people can burn crosses
with the proscribable intent to intimidate or simply with the
constitutionally protected intent to make an ideological state-
ment, and that evidence of circumstances apart from the burn-
ing of the cross must be considered to differentiate between
2
Justice O’Connor authored the plurality opinion, which Chief Justice
Rehnquist, Justice Stevens, and Justice Breyer joined. Justice Scalia joined
parts of Justice O’Connor’s opinion, including her discussion of what con-
stitutes a true threat, to make those parts a majority opinion, but he did not
join the part addressing the constitutionality of the prima facie evidence
provision.
42 UNITED STATES v. WHITE
the two purposes. Id. at 385-86. Significantly, despite the
fractured nature of the decision, a majority of the Justices
viewed proof of an intent to intimidate as constitutionally nec-
essary to convict an individual of cross burning without vio-
lating the First Amendment.
C.
Although in Black the Court did not explicitly indicate that
it was abrogating the purely objective standard employed by
most courts—including ours—for determining whether a
communication constitutes a true threat, I think its reasoning
has that effect. Two aspects of the decision suggest that the
Court viewed true threats as requiring proof of a specific
intent to threaten. See United States v. Cassel, 408 F.3d 622,
631-32 (9th Cir. 2005). First, its discussion of what consti-
tutes a constitutionally proscribable true threat contains a spe-
cific intent to threaten requirement. See id. at 631. Second, a
majority of the Justices viewed evidence of an intent to intim-
idate as necessary for a defendant to be convicted for cross
burning consistently with the First Amendment. Id. at 632.
The Court’s discussion of true threats quite clearly indi-
cates that proof of a specific intent to threaten is necessary for
a communication to qualify as a true threat. Recall that it
defined true threats as "those statements where the speaker
means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual
or group of individuals." Black, 538 U.S. at 359 (majority
opinion). As the Ninth Circuit has recognized, "[a] natural
reading of this language embraces not only the requirement
that the communication itself be intentional, but also the
requirement that the speaker intend for his language to
threaten the victim." Cassel, 408 F.3d at 631. Moreover, the
Court’s statement immediately following its definition of true
threats-that the speaker does not have to intend to carry out
the threat—further demonstrates that it viewed true threats as
containing a specific-intent requirement. See Black, 538 U.S.
UNITED STATES v. WHITE 43
at 359-60. The Court, having defined true threats in a manner
that incorporated a specific-intent-to-threaten requirement,
clarified that the specific-intent requirement does not necessi-
tate proof of intent to carry out the threat.
To the extent that the Court’s definition is susceptible to
more than one interpretation,3 however, the Court’s subse-
quent description of what constitutes constitutionally
proscribable intimidation—a type of true threat—clarifies that
true threats include a specific intent to threaten requirement.
The Court defined constitutionally proscribable intimidation
as speech through which the "speaker directs a threat to a per-
son or group of persons with the intent of placing the victim
in fear of bodily harm or death." Id. at 360 (emphasis added).
I cannot understand why intimidation would require a specific
intent to threaten before being constitutionally proscribable,
but all true threats would not. Therefore, in my mind, the
Court’s discussion of what constitutes a proscribable true
threat includes a requirement that the speaker specifically
intend to threaten the victim.
This interpretation is further underscored by the fact that a
majority of the Justices indicated proof of an intent to intimi-
date was necessary for the defendants to be convicted in a
manner consistent with the First Amendment. Cassel, 408
F.3d at 632. This, in turn, demonstrates that they viewed "in-
tent to threaten as the sine qua non of a constitutionally pun-
ishable threat." Id. at 631. If the First Amendment did not
impose a specific intent requirement, "Virginia’s statutory
presumption was superfluous to the requirements of the Con-
stitution, and thus incapable of being unconstitutional in the
way that the majority understood it." Frederick Schauer,
Intentions, Conventions, and the First Amendment: The Case
of Cross-Burning, 2003 Sup. Ct. Rev. 197, 217. In other
3
For an overview of the competing interpretations, see Paul T. Crane,
Note, "True Threats" and the Issue of Intent, 92 Va. L. Rev. 1225,
1256-60 (2006).
44 UNITED STATES v. WHITE
words, for the statutory provision and convictions to be
unconstitutional in the way that a majority of the Justices
understood them to be, the First Amendment must embody a
specific-intent-to-threaten requirement. Accordingly, the con-
stitutional deficiencies that the Justices identified in Black fur-
ther demonstrate that the First Amendment imposes a
specific-intent-to-threaten requirement.
I would therefore join those courts and scholars that have
addressed Black and determined that it requires the govern-
ment to prove that the speaker specifically intended to
threaten for the communication at issue to constitute a true
threat. See United States v. Parr, 545 F.3d 491, 500 (7th Cir.
2008) (dictum); Cassel, 408 F.3d at 633; O’Brien v.
Borowski, 461 Mass. 415, 424-26 (Mass. 2012); Roger C.
Hartley, Cross Burning-Hate Speech as Free Speech: A Com-
ment on Virginia v. Black, 54 Cath. U. L. Rev. 1, 31, 33
(2004); Schauer, supra, at 217-18, Crane, supra, at 1269.
D.
Since Black, we, like the majority of circuits, have contin-
ued to employ a purely objective test for determining whether
a communication constitutes a true threat. See, e.g., United
States v. Mabie, 663 F.3d 322, 333 (8th Cir. 2011); United
States v. Xiang Li, 381 F. App’x 38, 39 (2d Cir. 2010); Armel,
585 F.3d at 185; United States v. D’Amario, 330 F. App’x
409, 413-14 (3d Cir. 2009); United States v. Hankins, 195 F.
App’x 295, 301 (6th Cir. 2006); United States v. Stewart, 411
F.3d 825, 828 (7th Cir. 2005); Porter v. Ascension Parish
Sch. Bd., 393 F.3d 608, 616-17 (5th Cir. 2004); United States
v. Alaboud, 347 F.3d 1293, 1296-97 (11th Cir. 2003); United
States v. Nishnianidze, 342 F.3d 6, 16 (1st Cir. 2003). But see
United States v. Bagdasarian, 652 F.3d 1113, 1117 (9th Cir.
2011) ("Because the true threat requirement is imposed by the
Constitution, the subjective test set forth in Black must be
read into all threat statutes that criminalize pure speech.");
Parr, 545 F.3d at 500 ("It is more likely, however, that an
UNITED STATES v. WHITE 45
entirely objective definition is no longer tenable."). But like
most of these circuits, we have yet to address whether Black
imposes a specific intent requirement on our true-threats anal-
ysis. See Armel, 585 F.3d at 185. But see Mabie, 663 F.3d at
332-33 (addressing Black but nevertheless holding that "[t]he
government need not prove that [the defendant] had a subjec-
tive intent to intimidate or threaten . . . to establish that his
communications constituted true threats"). And because we
have never squarely addressed the issue but, at most, have
assumed it, we remain free to address its merits. See Brecht
v. Abrahamson, 507 U.S. 619, 631 (1993) ("[S]ince we have
never squarely addressed the issue, and have at most assumed
[it], we are free to address the issue on the merits."); Ark.
Game & Fish Comm’n v. United States, 637 F.3d 1366, 1378
n.7 (Fed. Cir. 2011) ("We have consistently held that panel
authority that does not address an issue is not binding as to the
unaddressed issue."); Passmore v. Astrue, 533 F.3d 658, 660
(8th Cir. 2008) ("[W]hen an issue is not squarely addressed in
prior case law, we are not bound by precedent through stare
decisis."); Fernandez v. Keisler, 502 F.3d 337, 343 n.2 (4th
Cir. 2007) ("We are bound by holdings, not unwritten
assumptions."). Our precedent, therefore, does not preclude us
from reaching this issue.
In light of Black, we should depart from Darby’s holding
and impose a requirement that for a communication to consti-
tute a true threat the speaker must have specifically intended
to threaten the victim. To prove a true threat, the government
would therefore need to satisfy a two-pronged test.
See Bagdasarian, 652 F.3d at 1117; Parr, 545 F.3d at 500.
First, the government would need to prove that "a reasonable
recipient familiar with the context of the communication"
would interpret the communication as a threat. Darby, 37 F.3d
at 1066. Second, the government would have to demonstrate
that the speaker intended for the communication to threaten
the victim. This prong would require proof that "[t]he threat
[was] made ‘with the intent of placing the victim in fear of
46 UNITED STATES v. WHITE
bodily harm or death.’" United States v. Magleby, 420 F.3d
1136, 1139 (10th Cir. 2005) (quoting Black, 538 U.S. at 360).
As compared to a purely objective test, imposing a specific
intent to threaten requirement strikes a more appropriate bal-
ance between the ideals that the First Amendment serves and
the interest in protecting victims from the harms caused by
threatening speech. See Crane, supra, at 1271-72. People
often use violent phrases or symbols to convey ideas or dis-
pleasure, not just to threaten. They employ such speech for its
emotive appeal, not just its cognitive force. Cf. Cohen v. Cal-
ifornia, 403 U.S. 15, 26 (1971). Violent and extreme rhetoric
are no strangers to our political discourse. See Planned Par-
enthood of the Columbia/Willamette Inc. v. Am. Coal. of Life
Activists (Planned Parenthood I), 244 F.3d 1007, 1014 (9th
Cir. 2001) ("Extreme rhetoric and violent action have marked
many political movements in American history. . . . [M]uch
of what was said even by nonviolent participants in these
movements acquired a tinge of menace."), aff’d in part,
vacated and remanded in part, 290 F.3d 1058 (9th Cir. 2002)
(en banc). Such rhetoric can constitute core political speech,
even when it invokes fear and creates apprehension.
The purely objective approach allows speakers to be con-
victed for negligently making a threatening statement—that
is, for making a statement the speaker did not intend to be
threatening, but that a reasonable person would perceive as
such. This potential chills core political speech. See Rogers
v. United States, 422 U.S. 35, 47-48 (1975) (Marshall, J., con-
curring) ("[T]he objective interpretation embodies a negli-
gence standard, charging the defendant with responsibility for
the effect of his statements on his listeners."); Planned Par-
enthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life
Activists (Planned Parenthood II), 290 F.3d 1058, 1108 (9th
Cir. 2002) (en banc) (Berzon, J., dissenting) ("[A] purely
objective standard for judging the protection accorded such
speech would chill speakers from engaging in facially pro-
tected public protest speech that some might think, in context,
UNITED STATES v. WHITE 47
will be understood as a true threat although not intended as
such."); Jennifer E. Rothman, Freedom of Speech and True
Threats, 25 Harv. J.L. & Pub. Pol’y 283, 316 (2001)
("Punishing merely negligent speech will chill legitimate
speech by forcing speakers to steer clear of any questionable
speech."); Crane, supra, at 1273 ("Put simply, an objective
standard chills speech."). "Unsure of whether their rough and
tumble protected speech would be interpreted by a reasonable
person as a threat, speakers will silence themselves rather than
risk liability." Planned Parenthood II, 290 F.3d at 1108.
Under a purely objective test, speakers whose ideas or
views occupy the fringes of our society have more to fear, for
their violent and extreme rhetoric, even if intended simply to
convey an idea or express displeasure, is more likely to strike
a reasonable person as threatening. They are the ones more
likely to abstain from participating fully in the marketplace of
ideas and political discourse. A specific intent requirement
would alleviate this chilling effect by providing speakers the
solace of knowing that they cannot be convicted for negli-
gently making a threat. It would provide them "the necessary
‘breathing space’ to speak freely and openly." Crane, supra,
at 1273.
Imposing such a specific-intent-to-threaten requirement to
achieve this end has a sound basis in First Amendment juris-
prudence. As we have previously recognized, to prevent the
chilling and potential suppression of protected speech, certain
classes of speech that generally fall outside of First Amend-
ment protections require proof of a heightened, subjective
mens rea before they may be punished. See, e.g., Rice v. Pala-
din Enters., Inc., 128 F.3d 233, 247 (4th Cir. 1997) ("[T]o
prevent the punishment or even the chilling of entirely inno-
cent, lawfully useful speech, the First Amendment may in
some contexts stand as a bar to the imposition of liability on
the basis of mere foreseeability or knowledge that the infor-
mation one imparts could be misused for an impermissible
purpose."). For example, when speakers level allegedly
48 UNITED STATES v. WHITE
defamatory falsehoods against public officials or public fig-
ures, plaintiffs seeking to recover civilly must demonstrate the
speakers made the statements with actual malice. Gertz v.
Robert Welch, Inc., 418 U.S. 323, 342-43 (1974); New York
Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). And
speech constitutes constitutionally proscribable incitement
only if (1) the speaker possesses a specific intent to produce
or incite others to imminent lawless action and (2) the speech
is likely to have that effect. Brandenburg v. Ohio, 395 U.S.
444, 447 (1969) (per curiam) ("[T]he constitutional guaran-
tees of free speech and free press do not permit a State to for-
bid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or
produce such action." (footnote omitted)); see also Hess v.
Indiana, 414 U.S. 105, 109 (1973) (per curiam) (holding that
the defendant’s speech was not constitutionally proscribable
incitement in part because "there was no evidence, or rational
inference from the import of the language, that his words
were intended to produce, and likely to produce, imminent
disorder" (emphasis omitted)); James v. Meow Media, Inc.,
300 F.3d 683, 698 (6th Cir. 2002) (recognizing that the Bran-
denburg test for incitement requires proof of intent); Eugene
Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095,
1193 (2005) ("[T]here is precedent for using intent . . . as part
of First Amendment tests: Under the incitement test, speech
that is intended to and likely to cause imminent harm is
unprotected. Speech that the speaker merely knows is likely
to cause imminent harm is protected." (footnote omitted)).
The First Amendment, therefore, imposes heightened, subjec-
tive mens rea requirements in certain contexts to ensure "that
preeminent values underlying that constitutional provision
[are] not . . . imperiled." Rice, 128 F.3d at 247. For the rea-
sons I have stated, I think the true-threats context warrants
such a subjective-intent requirement to alleviate the chilling
effect that a purely objective standard causes, and I believe
the Supreme Court has recognized such a requirement.
UNITED STATES v. WHITE 49
III.
In instructing the jury as to Counts 1 and 5, which charged
White with violating § 875(c), the district court correctly
charged the jury that, to convict, it had to find that the com-
munications in question constituted true threats because the
First Amendment does not protect true threats. The court
instructed the jury on the objective test for determining
whether a communication is a true threat. It then stated that
"[t]he government does not have to prove that the defendant
subjectively intended for the recipient to understand the com-
munication as a threat."
At the conclusion of the jury instructions, White noted his
objection based on his "proposed instruction on free speech
and true threats." His proposed jury instruction added to the
objective test a specific-intent-to-threaten requirement.4
Although acknowledging that the district court had indicated
it would not give his proposed instruction, he nevertheless
indicated his desire to preserve the issue for appeal. The dis-
trict court noted the proposed instruction was in the record,
4
His proposed instruction stated as follows:
The Free Speech Clause of the First Amendment does not pro-
tect statements that are "true threats." A statement made by a per-
son constitutes a "true threat" when: first, a person makes a
statements that, in context, a reasonable listener would interpret
as communicating a serious expression of an intent to inflict or
cause serious harm on or to the listener or the target of the com-
munication; and second, the speaker intended that the communi-
cation be taken as a threat that would serve to place the listener
or target of the communication in fear for his or her personal
safety, regardless of whether the speaker actually intended to
carry out the threat.
White’s proposed jury instruction, which included a specif-
ic-intent-to-threaten requirement, must be distinguished from his proposed
amendments to the government’s proposed jury instruction. The govern-
ment’s proposed jury instruction disavowed a specific-intent-to-threaten
requirement, and White’s proposed amendments to it did not add one.
50 UNITED STATES v. WHITE
but reaffirmed that it would not give the instruction. In light
of these efforts, White, in my view, adequately preserved the
issue for appeal and may challenge the jury instructions here.
Because the district court’s jury instruction contained an
error of law in that it informed the jury it did not have to find
that White specifically intended to threaten the victims, I
would vacate his convictions for Counts 1 and 5. Otherwise,
I am pleased to concur in the remainder of the majority opin-
ion.