From Judge Alan Albright (W.D. Tex.) in U.S. v. Burger earlier this month:
A three-count indictment alleged that Defendant James Wesley Burger violated 18 U.S.C. § 875(c) by making unlawful interstate-threatening communications ("the threatening communications") on Roblox—an online video game platform that allows players to create their own "experiences" or "games" on public or personal servers and to disseminate those games to other players. The threatening communications were made in a popular Roblox experience called "Church," which had logged 20 million visits at the time it was taken down after Mr. Burger's arrest.
To play Roblox, players would create an avatar, choosing its physical appearance and clothing. Upon entering "Church," the avatar would find a space with rows of pews and a pulpit. The Church experience provided a venue where the avatars could exist, walk around, observe, and if they chose, interact. Some players engaged in role-play, including arguments and "trolling," intentionally engaging in distasteful debate and attempting to be edgy and anger others. Some Roblox players dressed their avatars as "Middle East terrorists" and discussed "violent Jihadism."
In the context of Roblox's Church environment, Mr. Burger made multiple disturbing statements, including: (Count 1) threats to "deal a grievous wound upon the followers of the Cross;" (Count 2) "I've come to conclude it will be the 12 of Shawwal aa/And it will be a music festival/Attracting bounties of Christians/In'shaa'allah we will attain martyrdom/And deal a grievous wound upon followers of the cross/Pray for me and enjoin yourself to martyrdom;" and (Count 3) "I have guns In[]case the authorities want to arrest me … I am ready to sacrifice my life for my Rabb….[The Defendant would] Detonate what I've prepared Of munitions And use my firearms To take many with me," and "Yes wish me luck on the path of martyrdom In'shaa'allah."
The court ordered that the indictment be dismissed, on the grounds that the speech didn't fit within the "true threats" exception for First Amendment protection:
