General Discussion

The Supreme Court held in 2023 that criminal prosecutions based on threatening communications require the government to prove that the speaker had “some subjective understanding of the threatening nature of his statements.”

But prosecutors need only prove that the speaker was “reckless,” meaning they “consciously disregarded a substantial risk” that the message would be viewed as threatening violence.

“I think it would be hard for them — very hard for them — to prove that James Comey intended this to be a threat,” Loeb said. “So, what they would try to show is that … when he posted this, he did so with kind of recklessness as to whether others would see this as a threat.”