Wishing the president harm on social media: a federal felony?

It’s an unusual time in history. Not only are we in the midst of one of the most divisive presidential elections in recent times; we’re also in the middle of a pandemic, the likes of which the world hasn’t seen in over a century. History took an ironic – and perhaps, some would say, karmic – twist when President Trump announced that he and the First Lady tested positive for COVID on October 1st.

Trump has long downplayed the severity of the virus and flouted public health guidelines. He and his family refused to wear masks during the presidential debate on September 29th. During the debate, he mocked Biden for wearing “the biggest mask I’ve ever seen.” Trump tested positive for the virus just a few days later.

The social media fallout

Many of Trump’s political opponents took the high road and wished him well. Amongst the general public, however, the lower roads were too good to pass up. One social media user joked that Trump had finally tweeted something positive. A former Obama staffer tweeted that she hoped Trump would die. And an independent Congressional candidate in California tweeted that he hoped both Trump and Biden would succumb to the virus.

The torrent of ill wishes – jokes or not – prompted Facebook, Twitter and TikTok to release statements warning users that content wishing harm on others would be immediately removed.

Crossing a line?

Violating a social media platform’s terms of use is one thing. Violating federal law is quite another. At some point, wishing the president harm could cross the line into criminal conduct.

Federal law makes it a class E felony to threaten to kill, kidnap or “inflict bodily harm” on a sitting U.S. president. The threat must be “willful,” meaning it was intentional, and made with some level of malice, motive or purpose. One federal appellate court has interpreted “willful” even more narrowly, requiring a “present intent” to do harm. A conviction can result in hefty fines and up to five years in federal prison.

The law traces its roots to the English Treason Act of 1351, which criminalized imagining aloud the death of a king. Unlike that law, however, the federal statute doesn’t criminalize wishing, hoping or imagining the president’s death. Likewise, jokes, political hyperbole and “idle talk” are beyond its reach.

What about freedom of speech?

While the First Amendment guarantees freedom of speech, the federal statute prohibiting threats against U.S. presidents carves out a narrow exception to that guarantee. The Supreme Court has long recognized exceptions – including “fighting words” that are likely to incite violence and “true threats” that are accompanied by an intent to harm or kill.

Unlike fighting words and true threats, however, threats against the president don’t require an intent to carry them out. All that is required is that the threat itself was made intentionally. Additionally, the threat doesn’t need to be communicated to the president directly. Threats on social media – even in private groups – could be prosecuted.

The takeaway? Be careful what you wish for on social media. The Secret Service may be watching.