Following Black, some federal courts of appeals recognized that, when charging a threat crime, the prosecution must prove that the speaker intended to intimidate or terrorize and anything less would fall outside the “true threat” exception to the First Amendment’s protection. In United States v. Bagdasarian, 652 F.3d 1113, 1118 (9th Cir. 2011), the court of appeals, recognizing the inconsistencies in its own pre-Black cases, concluded in the wake of Black “that ‘the element of intent is the determinative factor separating protected expression from unprotected criminal behavior'” (quoting United States v. Gilbert, 813 F.2d 1523, 1529 (9th Cir. 1987)). And, so, the Bagdasarian court held that an Act of Congress, which made it a felony to threaten to kill or do bodily harm to a major presidential candidate, required proof that “the speaker subjectively intended the speech as a threat.” Ibid. Another court of appeals reached this same result in considering a prosecution brought under an Act of Congress which criminalized the transmission in interstate commerce of “any communication containing any threat to injure the person of another.” United States v. Heineman, 767 F.3d 970, 972, 978-79 (10th Cir. 2014) (reading Black to require proof that the defendant “intended the recipient to feel threatened”). And a third found it unnecessary to decide the issue but stated in dictum that “it is more likely an entirely objective definition is no longer tenable.” United States v. Parr, 545 F.3d 491, 500 (7th Cir. 2008).
The prosecution likely argued that the “intent” referenced in Supreme Court precedent referred to any criminal intent. The defense successfully argued that the “intent” referenced “specific intent”, i.e., only a purposeful or knowing intent.