The first few months of the COVID-19 outbreak in the United States saw the rise of a troubling sort of behavior: people would cough or spit on people or otherwise threaten to spread the COVID-19 virus, resulting in panic and sometimes thousands of dollars in damages to businesses. Those who have been caught have been charged under so-called “terroristic threat” statutes. But what is a terroristic threat, and is it an appropriate charge in these cases? Surprisingly little has been written about these statutes despite their long history and frequent use by states. Our Essay is one of the first to look systematically at these statutes, and we do so in light of the rash of these charges during the ongoing pandemic.
Our argument begins with the premise that these statutes typically contemplate a “core case” of terroristic threatening, e.g., someone calls in a bomb threat which forces the evacuation of a building. But these statutes have been variously revised and repurposed over the years, most recently to mass shootings. The recent COVID-19 prosecutions, however, involve facts that are so far outside the “core case,” that even if terroristic threatening is a permissible charge in these cases, it is often not the most appropriate one. We conclude by suggesting that in many of the COVID-19 cases, other charges should be made (such as criminal mischief, disorderly conduct, false reporting, etc.) instead of terroristic threatening, and that a lot of the expressive and deterrence benefits of more serious charges can be accomplished just as well by social disapproval.