Were Statements in Roblox Chats About "Deal[ing] a Grievous Wound upon the Followers of the Cross" True Threats on Violence?

No, a district court held earlier this month, because they were made "while playing an online video game, speaking as a character, among other players who were similarly acting as characters in a virtual Church."

From Judge Alan Albright (W.D. Tex.) in U.S. v. Burger earlier this month:

A three-count indictment alleged that Defendant James Wesley Burger violated 18 U.S.C. § 875(c) by making unlawful interstate-threatening communications ("the threatening communications") on Roblox—an online video game platform that allows players to create their own "experiences" or "games" on public or personal servers and to disseminate those games to other players. The threatening communications were made in a popular Roblox experience called "Church," which had logged 20 million visits at the time it was taken down after Mr. Burger's arrest.

To play Roblox, players would create an avatar, choosing its physical appearance and clothing. Upon entering "Church," the avatar would find a space with rows of pews and a pulpit. The Church experience provided a venue where the avatars could exist, walk around, observe, and if they chose, interact. Some players engaged in role-play, including arguments and "trolling," intentionally engaging in distasteful debate and attempting to be edgy and anger others. Some Roblox players dressed their avatars as "Middle East terrorists" and discussed "violent Jihadism."

In the context of Roblox's Church environment, Mr. Burger made multiple disturbing statements, including: (Count 1) threats to "deal a grievous wound upon the followers of the Cross;" (Count 2) "I've come to conclude it will be the 12 of Shawwal aa/And it will be a music festival/Attracting bounties of Christians/In'shaa'allah we will attain martyrdom/And deal a grievous wound upon followers of the cross/Pray for me and enjoin yourself to martyrdom;" and (Count 3) "I have guns In[]case the authorities want to arrest me … I am ready to sacrifice my life for my Rabb….[The Defendant would] Detonate what I've prepared Of munitions And use my firearms To take many with me," and "Yes wish me luck on the path of martyrdom In'shaa'allah."

The court ordered that the indictment be dismissed, on the grounds that the speech didn't fit within the "true threats" exception for First Amendment protection:

Defendant made the statements at issue while playing an online video game, speaking as a character, among other players who were similarly acting as characters in a virtual Church. The Government would need to convince the jury that Mr. Burger, while typing as his character, making statements to the other online characters, in a fictional game understood as such by all participants, created a substantial risk his communications would be understood as a threat by other Roblox players. There is no showing that Mr. Burger recklessly disregarded the risk that other online characters, also playing a game, would see his fictional character's statements and understand them to be a true threat.

The jury would be asked to find, beyond a reasonable doubt, that Mr. Burger's statements were a true threat made in a public video game where people role-play….

Due to the statement's lack of specificity and the role-playing context in which it was made, the Court finds that a reasonable juror could not find the communication [in each of the three statements] a "true threat." …

The government had argued that a jury could reasonably find that the statements were indeed reasonably understood seriously, and that defendant so expected:

Two experienced gamers, who observed the Defendant make similar threats on two different days using two different aliases took the Defendant's comments to be true threats rather than role-playing or trolling. These two witnesses took the Defendant's threats so seriously that they contacted the FBI to prevent what they believed to be attack plans against the Defendant's targeted group in April: Christians at a Christian concert. Contrary to the Defendant's argument, there is nothing to indicate on either of those days that the Defendant and his cohorts were using Roblox and Discord to play games, but rather they were just using these platforms solely as communication devices….

Certainly, the Defendant can propose his theory to the jury that the Defendant was just playing a game and his multiple statements were not true threats. However, it is up to the jury in judging the facts and applying the Court's instruction to make the determination whether the Government has met its burden to prove the Defendant guilty beyond a reasonable doubt. Contrary to the Defendant's argument, there is no "avatar" exception to the lack of First Amendment protection for the Defendant making multiple true threats. The Defendant's Motion to Dismiss the indictment based on his statements were "made in the context of playing a virtual character in a video game" is without merit and should be denied.

But the court rejected this argument. The government also argued that there was evidence that defendant was indeed contemplating violence:

1. The Defendant's statements captured by the keylogger on his computer that was put in place by Defendant's uncle who had become concerned about the Defendant's behavior:
   [1] On July 24, 2024 Defendant typed he wants to attack the Austin Police Department and kill police officers. The Defendant also pledges allegiance to the head of the Islamic State.
   [2] On December 10, 2024, Defendant stated to the other person in a Roblox discussion not to discuss the matter as "it is very unsafe And leads to authorities becoming suspect of your actions or intentions."
   [3] On February 3, 2025, the Defendant stated: "We're getting our knives sharpened for your throats assdwawdsaawassssw/Mock us all you want but the spark has been lit /The spark of your demise / /You're going to kneel /What happens after is of no knowledge to me."
2. The Defendant's Roblox records where he provided bomb-making instructions to an individual purporting to be in Russia.
3. The Defendant's Google search terms, including his research of "lone wolf terrorist isis," "Festivals happening near me," suicide attacks, firearm ammunition, "most effective knife type," "what is punishment for the one who insults allah or his messenger".
4. The Defendant's February 10, 2025, online conversation about wanting to do a stabbing attack like his friend in Europe.
5. The bombmaking plans the Defendant made while in State custody and discovered by the Marshals when he was taken into federal custody.
6. The Defendant posting photographs of himself holding firearms.
7. The Defendant's jailhouse comments to his aunt when she asked him if she had said something against Mohammad would the defendant harm her and he responded that would be a "redline" for him, which the aunt understood to mean the answer to her question was yes.
8. The Defendant's uncle putting a keylogger on the family computer because of concern about the Defendant's activities.
9. The Defendant's uncle moving his firearms out of the house because of concern for the Defendant's behavior.
10. Defendant sending Islamic State propaganda, including beheading images.
11. The Defendant sending a March 26, 2024, message on 4-chan stating that his highest ambition was to be a successful serial killer along with making violent misogynistic and racist comments.
12. The Defendant attempted to take a firearm to school when he was a freshman in high school but was prevented from doing so by his grandmother.

But the court rejected this, too, reasoning:

A communication is a "threat" if "in its context [it] would have a reasonable tendency to create apprehension that its originator will act according to its tenor." The focus is on whether the "recipient of the in-context threat reasonably feared [the threat] would be carried out."

To make this determination, logic dictates that the evidence be limited to facts known to the recipient, whose apprehension or fear must be reasonable based on the context in which the threatening communications are made. In contrast here, the Government seeks to demonstrate the threatening nature of Defendant's communications by relying on out-of-context, extrinsic evidence unknown to any recipient of the alleged threatening communications (i.e., those who saw the communications charged in the superseding indictment). Specifically, the Government points to Mr. Burger's computer search history and later-discovered communications and sharing of bomb-making instructions and photographs with another individual. There is no claim that a recipient of the threatened communications was made privy to that evidence….

It's rare for courts to conclude that a facially threatening statement is, on its face, clearly meant as a joke or hyperbole or role play, but it does happen; Watts v. U.S. (1969) (the "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.") is one example, and State v. Metzinger(Mo. Ct. App. 2015) is another. In Metzinger, defendant tweeted these items before and during the St. Louis-Boston World Series, together with these three other items:

Putting my loft up for ridiculous "Boston-only" rate on @airbnb for the #WorldSeries. Pressure cooker sold separately.

Going to be tailgating with a #PressureCooker during games 3-4-5 in #STL during #WorldSeries. #STLStrong #GoCards #postseason from Springfield, MO.

The #WorldSeries will be another finish line not crossed by #Boston.

Listening to the Offspring's "Bad Habit" and the lyrics just ring true of what will go down very soon. [The court noted that "The Song referenced in the last message contains lyrics about violence, with repeated mentions of 'blowin' away.'" -EV]

The Missouri Court of Appeals reasoned:

[T]he language of the tweets at issue demonstrated on their face that they were not serious expressions of an intent to cause injury to another…. Defendant's tweets facially reveal that they were made in the context of sports rivalry, an area often subject to impassioned language and hyperbole. While Defendant's references to pressure cookers and allusions to the Boston Marathon bombing were tasteless and offensive, the context of his tweets was such that a reasonable recipient would not interpret them as serious expressions of an intent to commit violence….

Defendant's tweets are distinguishable from the threats in [two prior cases] because the State established without dispute at the hearing that they were made in the context of sports rivalry and in the spirit of "trash talking." Nothing in Defendant's tweets credibly suggested, either directly or indirectly, that Defendant was threatening violent acts that were likely to occur.

We conclude that the trial court properly considered the language of the four tweets and, under the rather unique circumstances of this case, correctly determined, as a matter of law, that the four tweets did not constitute "true threats" and, therefore, were improperly criminalized.

We'll see what the Fifth Circuit decides about the Burger case; oral argument is set for Jan. 20.

Comments

[not guilty]

From what I can tell, the procedural posture of this case is peculiar. It appears that the District Court granted a pretrial motion to dismiss the indictment, making findings of fact as to what the government's anticipated proof would show.

Rule 12(b)(1) of the Federal Rules of Criminal Procedure provides that "A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Do the facts that the government claims included within the four corners of the indictment itself? If so, that is not apparent from the portions of the indictment quoted in the prosecution response to the motion to dismiss.

Was there a pretrial proffer made by the prosecution as to what would be offered at trial, which the District Court determined that, taken as true, as a matter of law would be insufficient for any rational juror to find that the accused had made "true threats" which are unprotected by the First Amendment? How can such facts be determined without hearing from actual witnesses?

The instant appeal appears to have been taken pursuant to the first paragraph of 18 U.S.C. § 3731, which states:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

Aesop's Fables teaches "Be careful what you wish for, lest it come true." Suppose the Court of Appeals reverses the District Court and reinstates the indictment, whereupon the accused stands trial, the prosecution -- after jeopardy has attached -- proves every fact it had proffered pretrial, and the District Court grants a defense motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29(a), finding the evidence to be insufficient to sustain a conviction.

Double jeopardy would then preclude a future retrial, even if the District Court's order had been entered erroneously. See, Sanabria v. United States, 437 U.S. 54, 66-68 (1978).

[not guilty]

Correction: In my second paragraph above, I intended to write "Do the facts that the government claims it will prove appear within the four corners of the indictment itself?"

[Bored Lawyer]

I would say it was a true threat. Against a fictional character.

As the statute at issue, 18 USC 875(c), https://www.law.cornell.edu/uscode/text/18/875, requires a threat against a "person," there was no crime.

Suppose I emailed that I plan to murder Mickey Mouse, and set out my plans in gory detail. Sick, perhaps, but not a crime.

[SRG2]

Disney donates $500,000 to some Pam Bondi venture, and next thing you know... 🙂