In United States v. Dennis, 132 F.4th 214 (2d Cir. 2025), an appeal following a trial at which the defendant represented himself pro se, the Second Circuit (Raggi, Wesley, and Kahn) clarified the extent of evidence sufficient to prove “true threats” by affirming two of the Defendant’s counts of conviction while reversing a third. In doing so, the Court drew focus to the context of the statements—rather than “magic” words—in discerning whether the evidence established true threats as necessary to comport with the First Amendment.
Background
On March 24, 2023, Defendant-Appellant Willie Dennis was convicted on three counts of cyberstalking committed by sending repeated abusive electronic communications. Dennis, an attorney, was ousted from the law firm K&L Gates LLP’s (“K&L”) partnership in late 2019, and sent the communications at issue to three of his former partners over the following year. As ultimately presented at trial, Dennis was charged with three counts of violating 18 U.S.C. § 2261A(2)(B), which makes it a crime for any person to
with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, [to] use[ ] the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that—
(A) places that person in reasonable fear of the death of or serious bodily injury ...; or
(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person
Dennis proceeded to trial pro se after firing his assigned attorney from Federal Defenders and rejecting two court-appointed shadow counsels. At trial, the Government presented evidence of the allegedly threatening messages Dennis sent, as well as testimony from the recipients. Dennis cross-examined the witnesses, but called no witnesses in his own defense. The jury convicted him on all three counts, and on February 10, 2023, Dennis was sentenced to a total of 24 months’ imprisonment.
On appeal, Dennis raised several challenges. Primarily, he raised an as-applied challenge to the threats statute on free speech grounds, arguing that the Government had failed to present sufficient evidence that he had engaged in “true threats of violence,” as necessary for his prosecution to comport with the First Amendment. This argument was analyzed as a claim of insufficiency of the evidence. In addition, although not discussed herein, Dennis appealed a portion of the jury instruction related to the statutory requirements; evidentiary decisions which precluded inquiry into New York police’s decision not to charge him; and the District Court’s discussion, before the jury, of the circumstances that led to Dennis proceeding pro se. Each of these additional bases for appeal were rejected by the Second Circuit.
The Disparate Holdings by Count Emphasize the Necessity of Context in Evaluating True Threats Evidence
Dennis was convicted on three counts of 18 U.S.C. § 2261A(2)(B), one for each of the former partners to whom he sent messages. On appeal, the Second Circuit affirmed two of the convictions, but reversed the third for insufficiency of the evidence, specifically evidence that Dennis’s communications rose to the level of a “true threat.”
The Court held that section 2261A(2)(B)’s criminalization of courses of conduct intending to “harass, or intimidate” could violate the First Amendment, if read in the broadest sense of those terms. Both “harass[ing]” and “intimidat[ing]” behavior, read without limitation, would encompass protected speech. In light of the Supreme Court’s prior holding that “true threats,” defined as “serious expressions conveying that a speaker means to commit an act of unlawful violence,” fall outside the First Amendment’s protection of speech, section 2261A(2)(B) must be limited only to such true threats to avoid running afoul of constitutional protections. Counterman v. Colorado, 600 U.S. 66, 74 (2023).
The Court explained that “true threats” are determined “objectively, by asking whether an ordinary, reasonable recipient who is familiar with the context of the communication would interpret it as a threat of injury,” but “still require[] proof that the defendant had some subjective understanding of the threatening nature of his statements.” 132 F.4th at 229-30. Section 2261A(2)(B) includes a specific intent requirement that “required the government to prove that Dennis sent the electronic communications at issue with the intent to ‘harass,’ or ‘intimidate,’” thus satisfying the subjective requirement of the constitutional test. Accordingly, the Court focused on whether an “ordinary, reasonable recipient” of Dennis’s communications “familiar with the context … would interpret it as a threat of injury” to determine whether there was sufficient evidence to remove Dennis’s convictions from the ambit of the First Amendment. With this test in mind, the Court analyzed each of the counts of conviction.
Count I and IV
The Court affirmed Counts I and IV. In both cases, the Court relied significantly on the context of the messages, and the general message imparted by all of the messages in combination, in interpreting the specific words Dennis used. Although the messages, read in isolation, did not explicitly reference violence, the Court concluded the collective implication was sufficient.
Regarding the first victim, Dennis sent “thousands of electronic communications,” “sometimes numbering as many as a hundred on a single day and often sent late at night,” despite receiving no response. 132 F.4th at 230. Most of the messages recounted in the opinion make no explicit threats of violence: Dennis stated “u r going to get yours,” “u need to pay the most,” and “when we are done, you are going to wish you had never met me.” Id. He added on another occasion that “evildoers” will “soon be cut down like the green herb,” quoting scripture in a manner that suggested death, and referenced “mass shootings in Ohio and Texas” with a note that “the victims really ‘did die,’” which the Court viewed as “strongly insinuating that [the victim] would too.” Id. at 231.
Those interpretations were further supported by Dennis’s messages regarding the first victim’s children. Some statements were similarly threats only by implication: for instance, Dennis stated he would travel to the victim’s home to “water the plants” at a time when “your sons can help me.” Id. The Court stated that “in the context of Dennis’s insistence that [the victim] needed to pay ‘the most’ … [this message] could well be understood by a reasonable jury to communicate, and intend to communicate, a physical threat to the children.” Id.; see also id. at 232 (stating he would “chase … down” the children for the “sins of the father”). Later, more obvious messages added further clarity, as Dennis suggested that “during this biblical moment, God is going to test” the victim’s children’s school, referenced by name, “like it has never been tested before” because “people will be dying daily for the next year[.]” Id.
Dennis similarly sent the victim addressed in Count IV “thousands of communications … which also sometimes numbered more than a hundred in a single day.” Id. Count IV lacked the more explicit evidence targeted at the first victim’s children, and the Court acknowledged that for Count IV, “none of the[] threats explicitly reference physical harm,” but relied on the context to “imply it.” Id. The statements at issue included suggestions that the victim “sleep with one eye open,” that Dennis would “make [an] example” out of the victim, and that she was “toast.” Id. He also repeatedly told the victim to “leave” New York and practice law elsewhere. Id. at 233. Once again invoking biblical injury, Dennis stated he would make the victim a “biblical example” and claiming “‘God’ had ‘commanded’ Dennis ‘to call out’ [the victim] for ‘actions which are so offensive in his eyes.” Id. at 232. Despite the lack of any overt references to violence, “the totality of the evidence was sufficient” to show true threats and affirm the convictions.
Count II
Count II, however, lacked the context necessary to transform possible implications of violence into true threats. Unlike with the first two victims, Dennis’s communications to the third former partner were limited to a single evening and morning. Dennis ran into this former partner at a professional conference approximately one month after his ouster from K&L. The partner testified that Dennis was “pretty angry” at that meeting, and left the venue. Id. at 233. Over the course of the following evening and morning, Dennis sent a series of text messages.
The former partner testified that he interpreted Dennis’s messages as threatening in tone. Those messages included some similar statements to Count IV, such as Dennis’s statement that he “cannot wait until the next time I hear you talking about brotherhood with someone.” He similarly suggested that the partners saw his situation as “all a big game,” and stated “OK. Let’s play.” Id. at 233-34. He added that they should “meet for breakfast” the next morning, and then prior to breakfast, requested the partner to “save me a seat,” because “I will find you.” Id. at 234. At that breakfast, Dennis engaged in a “soft rant,” then later photographed him while he spoke to another conference attendee, then got physically “close” to the partner “as he angrily complained.” Id.
The Court concluded that “[w]hile these communications may have been distressing,” they communicated, at most, Dennis’s frustration with the partner’s attitude and an intent to embarrass him professionally. Id. The partner testified to a similar effect, explaining that he was concerned about Dennis’s claims that Dennis would “expose” him. Id.
Commentary: “Magic Words” Were Insufficient to Affirm Count II in Context
In comparing the affirmed and reversed counts, the Court’s emphasis on the context of Dennis’s messages is clear. Both affirmed convictions involved thousands of messages sent over extended periods, while Count II involved conduct occurring only in a single night. Further, even the ambiguous statements addressed in Count I were colored by Dennis’s later, more explicit statements regarding the victim’s family, while the similar statements in Count IV were informed by Dennis’s insistence that the victim should leave the state. Count II presented several similarly questionable statements, but without the frequency of the messages and the other, more explicit threats, the evidence was insufficient to show a statement that could reasonably and objectively be interpreted as a threat of injury.
Emphasizing the point, the Court distinguished another case in which a defendant suggested he and the victims “play”—identical phrasing to one of Dennis’s messages at issue in Count II. See United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994). In that case, the defendant sent a letter stating he would “play … with you … from a Koranic and [Torah] perspective that’s an eye for an eye and life for a life.” Id. at 50. Without the additional context of violence, though, Dennis’s use of such a “magic” word was insufficient to support the conviction. While the Second Circuit, in this decision, held that Dennis’s statements that his victims “need to pay” or should “sleep with one eye open” constituted true threats, identical statements may be insufficient in other contexts. Context matters.
The Court appropriately gave the defendant the benefit of the doubt, explaining in detail why certain threats were sufficient for guilt and others were not. Even though all of these statements by the defendant are beyond the pale of civilized discourse, that does not make them outside of the scope of what is protected of the First Amendment. By conducting such a close review and explaining its analysis, the Court has made it easier for district courts and litigants to analyze future sets of threats for First Amendment review.
