It is possible, under some statutes criminalizing threats, for a threat to be punished even though (a) the defendant did not intend to carry out the threat, and (b) the defendant did not intend the threat to be believed. Under these circumstances it is possible the statute might punish a defendant who was merely negligent on these issues.

A mental state of mere negligence is insufficient to constitute a crime of moral turpitude. A conviction does not constitute a crime of moral turpitude if the minimum intent required to commit the offense is criminal or gross negligence, defined as a lack of awareness of a substantial risk, unless the record of conviction shows noncitizen pleaded to a greater intent. Matter of Perez-Contreras, 20 I. & N. 615 (BIA 1992) (3d degree assault); Matter of Sweetser, 22 I. & N. Dec, 709 (BIA 1999) (child abuse); Matter of B, 2 I. & N. 867 (BIA 1947) (Canadian conviction for willfully damaging property not CMT, where willfully defined to include gross or wanton negligence).

If the threat is not a true threat, i.e., there is no element requiring the victim to reasonably believe the threat, it may be protected under the First Amendment to the United States Constitution. The First Amendment, applicable to the States through the Fourteenth Amendment, provides that Congress shall make no law ... abridging the freedom of speech. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). While the scope of the First Amendment is broad, it does not extend to unprotected speech. Kilburn, 151 Wash.2d at 42"43, 84 P.3d 1215.

True threats occupy one category of unprotected speech. Id. at 43, 84 P.3d 1215. A true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another person. Id. (internal punctuation and quotation marks omitted) (quoting State v. Williams, 144 Wash.2d 197, 208"09, 26 P.3d 890 (2001)). . . . The speaker of a true threat need not actually intend to carry it out. Id. at 46, 84 P.3d 1215. It is enough that a reasonable speaker would foresee that the threat would be considered serious.

Importantly, only threats that are true may be proscribed. The First Amendment prohibits the State from criminalizing communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole. Id. at 43, 84 P.3d 1215. We recently interpreted the bomb threat statute, RCW 9.61.160, to reach only true threats in order to save it from a constitutional challenge. State v. Johnston, 156 Wash.2d 355, 364, 127 P.3d 707 (2006). We adhere to this principle and construe the threats-to-kill provision of RCW 9A.46.020 to the same effect. State v. Schaler 169 Wash.2d 274, 283-284, 236 P.3d 858, 862-63 (Wash. 2010). Thanks to Jonathan Moore.