United States v. Goltz

In United States v. Goltz, No. 23-10851 (5th Cir. July 10, 2024) (unpublished), the Fifth Circuit affirmed the defendant’s conviction for sending interstate threatening communications in violation of 18 U.S.C. § 875(c).

The district court did not commit plain error when taking Goltz’s guilty plea because a reasonable person could have interpreted Goltz’s statements as a “true threat.” “In determining whether a statement is a true threat,” the Fifth Circuit asks “whether the communication at issue would place a reasonable recipient in apprehension.” See United States v. Daughenbaugh, 49 F.3d 171, 173-74 (5th Cir. 1995).

Goltz first argued that “statements made on social media cannot constitute threats as a matter of law,” but he cited no binding authority, which doomed him under the plain-error standard of review.

Second, Goltz cited Counterman v. Colorado, 600 U.S. 66 (2023) to argue that “mere advocacy of illegal action is protected by the First Amendment.” But in that case, the Supreme Court “explicitly distinguished incitement offenses from threat offenses,” so the Fifth Circuit rejected Goltz’s argument.

Additionally, “the fact that ‘political rhetoric’ accompanies a threat ‘furnishes no constitutional shield’ in and of itself” (quoting Daughenbaugh, 49 F.3d at 174). Here, it was not clear that Goltz’s posts — which were not described in the Fifth Circuit’s opinion — “were merely hyperbolic, humorous, or rhetorical,” and they were not “clearly or obviously hypothetical or conditional.”