Anti-Hoax Legislation in the 107th Congress: Addressing Problems since September 2001

Anti-Hoax Legislation in the 107th Congress: Addressing Problems since September 2001

Order Code RL31314
CRS Report for Congress
Received through the CRS Web
Anti-Hoax Legislation
in the 107th Congress:
Addressing Problems
since September 2001
March 1, 2002
Paul Starett Wallace, Jr.
Specialist in American Public Law
American Law Division
Congressional Research Service ˜ The Library of Congress

Anti-Hoax Legislation in the 107th Congress:
Addressing Problems since September 2001
Summary
Since September 11, 2001, the number of false claims of terrorist acts has
ballooned. These false claims have become a serious headache for law enforcement
officials, who are overwhelmed with working overtime to prevent actual terrorist acts
and the investigations of all suspicious and fake events. Under current law, it is a
felony to perpetrate a hoax by claiming there is a bomb on an airplane or to
communicate in interstate commerce a threat to do bodily harm or personal injury to
another. However, current law does not address a hoax related to biological,
chemical, or nuclear dangers where there is no specific threat. On December 12,
2001, the House of Representatives by a 423 to 0 vote passed H.R. 3209 which is
designed to punish a variety of hoaxes not covered under current law. The bill would
impose civil and criminal penalties to deter and punish a person or persons for
perpetrating a hoax that others could reasonably believe is or may involve a biological,
chemical, or nuclear attack or an attack using some other type of weapon of mass
destruction. Also, a convicted person could be responsible for the reimbursement of
any emergency or investigative expense due to the hoax. The House Judiciary
Committee by voice vote favorably reported H.R. 3209 on November 15, 2001,
which was introduced by Representative Lamar Smith, Chairman of the Crime
Subcommittee on November 1, 2001. On December 12, 2001, H.R. 3209 was
received in the Senate and referred to the Committee on the Judiciary. A companion
bill (S. 1719) which is identical to H.R. 3209 was also introduced in the Senate as
well as other similar Senate bills with several significant differences regarding the
standard of knowledge reflecting the degree of intent necessary for a conviction.

Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
New Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Intended Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Civil Liability/Civil Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Constitutional Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Double Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Appendix A. Threats, Hoaxes and Related State Statutes . . . . . . . . . . . . . . . . . . . . 11
Appendix B. Comparison of Anti-Hoax Proposals . . . . . . . . . . . . . . . . . . . . . . . . . 15

Anti-Hoax Legislation in the 107th Congress:
Addressing Problems since September 20011
Background
The United States has experienced a proliferation of hoax anthrax attacks against its
citizens since September 11, 2001, thus placing the United States at war at home and
abroad.2 On November 7, 2001, CNN News reported that “[t]he U.S. Postal Service said
... it has been plagued in recent days by nearly 12,000 hoaxes, threats and suspicious mail
incidents – an average of 654 daily – that have resulted in the evacuation of 429 postal
facilities for varying amounts of time.”3 Thus, this would suggest that the cost of
responding to these hoaxes, both in financial and emotional terms, has been substantial.4
The Director of the F.B.I., Robert Mueller, noted that the Bureau has received 2,300
reports of anthrax incidents since October 1, 2001. The overwhelming majority of them,
he said, are obviously hoaxes but he pointed out that investigating these hoaxes has wasted
millions of dollars of anti-terrorism resources.5
Federal law already prohibits bomb scares and similar hoaxes that: (1) involve public
transportation,6 (2) are transmitted by mail, telephone, or computer,7 (3) involve false
reports affecting interstate or foreign commerce that a consumer product has been tainted
and if true would create a risk of death or bodily injury to another person,8 (4) are
statements or entries made with respect to any matter within the jurisdiction and related
to the business or concern of the executive, legislative, or judicial branch of the
Government of the United States (e.g., the protection of federal property).9 Federal
1This report was prepared with the assistance of (name redacted), Senior Specialist, CRS,
American Law Division.
2H. Rept. No. 306, 107th Cong., 1st Sess. 3 (2001).
3November 7, 2001, Posted: 7:59 PM EST.
4See H.Rept. No. 306, supra note 1, at 3. The House Report states: “At home, emergency
responders, law enforcement and investigation officials have been working overtime to prevent
terrorist acts and investigate suspicious events and actual terrorist acts. The efforts on the
home front have understandably drained Federal, state and local resources.”
5147 Cong. Rec. H9191 (daily ed. Dec. 11, 2001).
618 U.S.C.§35.
718 U.S.C.§844(e).
818 U.S.C. §1365(c).
918 U.S.C. §1001.

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coverage becomes more comprehensive if the hoax escalates to a threat.10 At that point,
threats - whether real or hoaxes - that involve the use of biological,11 chemical,12 nuclear,13
or other weapons of mass destruction14 become federal offenses.
At the state level, most jurisdictions have threat statutes, as well as false alarm or
bomb scare laws or both; the citations and descriptions of these statutes as they relate to
threats and other related issues are appended.15 There are a few states which expressly
proscribe hoaxes involving catastrophic events, e.g.., Florida,16 Georgia,17 Kentucky,18
Michigan,19 and South Carolina.20 It is very likely that other states will soon follow this
course.
Nevertheless, the fact remains that hoaxes involving biological, chemical, nuclear, or
other weapons of mass destruction are not per se federal crimes. Several bills have been
10A threat announces or implies that the speaker can control the anticipated harm; the hoax
need involve no such declaration or implication.
1118 U.S.C. § 175.
1218 U.S.C. § 229(a)(1).
1318 U.S.C. § 831(a)(6).
1418 U.S.C. § 2332a.
15“A gap exists ... in the current [federal] law as it does not address a hoax related to
biological, chemical, or nuclear dangers where there is no specific threat.” See H.Rept. No.
306, supra note 1, at 3.
16“Any person who, without lawful authority, manufactures, possesses, sells, delivers,
displays, uses, threatens to use, attempts to use, or conspires to use, or who makes readily
accessible to others, a hoax weapon of mass destruction with the intent to deceive or otherwise
mislead another person into believing that the hoax weapon of mass destruction will cause
terror, bodily harm, or property damage commits a felony of the second degree ....” Florida
Statutes Annotated §790.166(d)(3) (2002).
17“It shall be unlawful for any person to manufacture, possess, transport, distribute, or use a
hoax device or replica of a destructive device or detonator with the intent to cause another to
believe that such hoax device or replica is a destructive device or detonator.” Official Code
of Georgia Annotated §16-7-85(a) (1999).
18“A person is guilty of terroristic threatening in the first degree when he or she: (a)
Intentionally makes false statements that he or she or another person has placed a weapon of
mass destruction on [specified property of this subsection] or [i]ntentionally and without
lawful authority, places a counterfeit weapon of mass destruction at any location or on any
object specified in paragraph (1)(a) of this subsection. Kentucky Revised Statutes Annotated
§508 (1)(a) and (b) (2001).
19“A person shall not manufacture, deliver, possess, transport, place, use, or release for an
unlawful purpose ... [a]n imitation harmful substance or devise.” Michigan Compiled Laws
Annotated §750.200j(1)(c)(2001).
20It is a misdemeanor to communicate or transmit “to a person that a hoax device or replica
is a destructive device or detonator with intent to intimidate or threaten injury, obtain property,
or interfere with the ability of a person or government to conduct its affairs.” South Carolina
Statutes Annotated §16-23-730 (2001).

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proposed addressing hoaxes. The House has passed an Anti-Hoax Terrorism Act (H.R.
3209), and proposals have been offered by a number of Senators including several
members of the Senate Judiciary Committee, i.e., S. 1658 (Sens. Schumer, DeWine and
Hatch), S. 1659 (Sens. Hutchinson and Sessions), S. 1665 (Sens. Biden and Hatch), S.
1666 (Sen. Leahy), and S. 1719 (Sen. Feinstein).
Legislation
New Crimes
The House-passed bill (H.R. 3209) and its Senate counterpart (S. 1719) would add
a new section 1037 to title 18 providing for criminal and civil penalties. Proposed section
1037 provides that “whoever engages in any conduct, with intent to convey false or
misleading information, under circumstances where such information may reasonably be
believed and where such information concerns an activity which would constitute a
violation of section 175, 229, 831, or 2332a, shall be fined under this title or imprisoned
not more than 5 years, or both.” The other proposals are similar but with several
significant differences.21
21S. 1658 (“whoever knowingly engages in any conduct – (1) knowing that the conduct is
likely to impart the false impression that activity is or will take place that violates section 175,
229, 831, or 2332a; and (2) that may reasonably be expected to be believed to cause an
emergency response by governmental agencies or that causes an emergency response by
governmental agencies to that activity; shall be fined under this title or imprisoned not more
than 5 years, or both,” proposed 18 U.S.C. 881(a)).
S. 1659 (“whoever communicates information, knowing the information to be false and
under circumstances in which such information may reasonably be believed, concerning the
existence of activity which would constitute a violation of section 175, 229, or 831 shall be
fined under this title or imprisoned not more than 5 years, or both,” proposed 18 U.S.C.
881(a)).
S. 1665 (“whoever, through the use of the mail, telephone, telegraph, or other instrument
of interstate or foreign commerce, or in or affecting interstate or foreign commerce, knowingly
engages in any conduct that is likely to impart the false impression that activity is taking
place, or will take place that violates section 175, 229, 831, or 2332a of this title shall be
fined under this title or imprisoned not more than 5 years, or both,” proposed 18 U.S.C.
2339C(a)).
S. 1666 (“whoever knowingly and maliciously imparts, conveys, or communicates
information or material, knowing that information or material to be false of fraudulent, and
under circumstances in which such information or material may reasonably be believed and
is reasonably likely to cause any responses by a Federal, State, or local government agency,
concerning the existence of activity that would constitute a violation of section 175, 229,
2332a, or 831 of this title, shall be fined under this title or imprisoned not more than 5 years,
or both,” proposed 18 U.S.C. 881(a)).
A general overall comparison of the various proposals is appended.

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Intent.
The House bill requires that the perpetrator have a mens rea (intent) to impart the
false impression or misleading information. The Judiciary Committee believed “that this
mens rea requirement will protect innocent individuals who have acted inadvertently. As
an additional protection against prosecuting innocent or inadvertent behavior, the
legislative language requires that the information be reasonably believable and concern
activities that would constitute a violation of criminal law relating to biological, chemical,
nuclear or weapons of mass destruction.” 22
A minority of the House Committee members favored the “knowingly and
maliciously” standard found in S. 1666 and reminiscent of the transportation hoax
language of 18 U.S.C. 35 under the view that the section would otherwise apply to the ill-
advised jokester, Id. at 23-5 (additional views of Reps. Conyers, Scott, Jackson-Lee, and
Waters).23 Each of the other bills uses a “knowing” standard.
Intended Consequences.
Each of the bills requires that the offender intend to impart the imminence of a
violation of 18 U.S.C. 175, 229 and 831 (relating to unlawful possession or use of
biological, chemical or nuclear material, respectively). The Hutchinson/Sessions bill (S.
1659) goes no further. The House version and the other Senate proposals add 18 U.S.C.
2332a to the predicate offense list. Section 2332a proscribes unlawful use, attempted use,
or threatened use of weapons of mass destruction, a term which it defines to include not
only biological, chemical and nuclear weapons, but firearms and explosives as well. Thus,
under their terms the new law would reach false reports of “a man with a gun.”
Both the Leahy and Schumer/DeWine/Hatch bills include section 2332a as a
predicate, but narrow the scope of their offerings by requiring that the hoax be one which
is reasonably likely to cause a response by a governmental agency.
Jurisdiction.
Only the Biden/Hatch bill, using language similar to that in the federal bomb scare
statute (18 U.S.C. 844(e)), contains an explicit federal jurisdictional element (“through
the use of the mail, telephone . . . or other instrument of interstate or foreign commerce.
. . .”). The other proposals rely upon the jurisdictional foundations of the predicate
offenses. Instead of a free standing crime, their hoax prohibitions might as easily have
been added as subsections to the predicate offenses (biological, chemical, nuclear and
massively destructive weapons offenses). Thus their jurisdictional pedigree would seem
to be as good as that of the predicate offenses to which they relate.
22H. Rept. No. 306, supra note 2, at 5.
2318 U.S.C. 35 has alternative mens rea: “whoever willfully and maliciously, or with reckless
disregard for the safety of human life. . . .”

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Sentences.
The proposals punish offenders by imprisonment for not more than 5 years and a fine
of the greater of $250,000 or twice the amount of damage caused.
The House Committee observed that, “This new provision is consistent with current
provisions in the criminal code that treat hoaxes related to certain crimes as felonies. For
example, 18 U.S.C. §1365(c)(1) provides ‘whoever knowingly communicates false
information that a consumer product has been tainted . . . shall be fined under this title or
imprisoned not more than 5 years or both.’”24 The same penalties attach to violations of
18 U.S.C. 35 (transportation hoaxes), although 844(e) (threats and bomb scares) carries
a 10-year maximum term of imprisonment.
Civil Liability/Civil Penalties
Violations of 18 U.S.C. 35 (hoaxes involving transportation facilities) subject the
offender to the possibility of civil penalties of not more than $1000 recoverable by the
United States in a civil cause of action. Other than the Leahy and Schumer/DeWine/Hatch
bills, the proposals adopt a variation of this approach. The House-passed legislation and
its Senate companion create a cause of action for expenses incurred as a consequence of
responding to a hoax or more precisely: “Whoever engages in any conduct, with intent to
convey false or misleading information under circumstances where such information
concerns an activity which would constitute a violation of 175, 229, 831, or 2332a, is
liable in a civil action to any party incurring expenses incident to any emergency or
investigative response to that conduct, for those expenses.” The Biden/Hatch and
Hutchinson/Sessions proposals call for civil penalties in an amount equal to the greater of
$10,000 or the cost of response.25 The House bill permits recovery by federal, state,
local, and private entities and individuals even if damage is less than $10,000. The civil
penalties are set at a minimum of $10,000 and are recoverable only by the federal
government in the case of the Hutchinson/Sessions bill and only by the federal or state
governments in the case of the Biden/Hatch legislation. Unlike restitution or
reimbursement under the proposals, neither the cause of action nor the civil penalties
require a prior criminal conviction.
24H. Rept. No. 306, supra note 2, at 5.
25S. 1659 (“whoever communicates information, knowing the information to be false,
concerning the existence of activity which would constitute a violation of section 175, 229,
or 831 is liable to the United States for a civil penalty of the greater of $10,000 or the amount
expended by the United States incident to the investigation of such conduct, including the cost
of any response made by any Federal military or civilian agency to protect public health or
safety,” proposed 18 U.S.C. 881(b)).
S. 1665 (“whoever, through the use of the mail, telephone, telegraph, or other instrument
of interstate or foreign commerce, or in or affecting interstate or foreign commerce, knowingly
engages in any conduct that is likely to impart the false impression that activity is taking
place, or will take place that violates section 175, 229, 831, or 2332a of this title shall be
liable to the United States or any State for a civil penalty of the greater of $10,000 or the
amount of the money expended by the United States or the State in responding to the false
information,” proposed 18 U.S.C. 2339C(b)).

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Reimbursement
Under existing law, victim restitution is a sentencing option in most federal felony
cases, 18 U.S.C. 3663, and a required sentencing feature in the case of any violent crime,
property crime, or violation of 18 U.S.C. 1365 (product tampering, including hoaxes
involving product tampering), 18 U.S.C. 3663A. Defendants may be ordered to pay
restitution to governmental entities – federal or state – when the governmental body is the
direct victim of the offense, as in the case of embezzlement of federal or state funds for
example.26 In most instances, however, a defendant may not be ordered to pay restitution
to federal or state entities for the cost of investigating or prosecuting or providing other
governmental services related to the offense for which he was convicted.27 The bills seek
to change that with respect to the hoaxes they proscribe.28
26United States v. Ruffen, 780 F.2d 1493 (9th Cir. 1986).
27Ratliff v. United States, 999 F.2d 1023 (6th Cir. 1993).
28H.R. 3209/S. 1719 (“The court, in imposing a sentence on a defendant who has been
convicted of an offense under subsection (a), shall order the defendant to reimburse any party
incurring expenses incident to any emergency or investigative response to that conduct, for
those expenses. A person ordered to make reimbursement under this subsection shall be
jointly and severally liable for such expenses with each other person, if any, who is ordered
to make reimbursement under this subsection for the same expenses. An order of
reimbursement under this subsection shall, for the purposes of enforcement, be treated as a
civil judgment,” proposed 18 U.S.C. 1037(c))
S. 1658 (“(1)The court, in imposing a sentence on a defendant who has been convicted
of an offense under subsection (a), shall order the defendant to reimburse for any expenses
incurred incident to the investigation of the commission by that person of such offense,
including the cost of any response made by any Federal military or civilian agency to protect
public health or safety. (2) A person ordered to reimburse for expenses under this subsection
shall be jointly and severally liable for such expenses with each other person, if any, who is
ordered to make reimbursement under this subsection for the same expenses,” proposed 18
U.S.C. 811(b) (captions omitted))
S. 1659 (“(1) The court, in imposing a sentence on a defendant who has been convicted
of an offense under subsection (a), shall order the defendant to reimburse the United States
for any expenses incurred by the United States incident to the investigation of the commission
by that person of such offense, including the cost of any response made by any Federal
military or civilian agency to protect public health or safety. (2) A person ordered to
reimburse the United States for expenses under this subsection shall be jointly and severally
liable for such expenses with each other person, if any, who is ordered to make reimbursement
under this subsection to reimburse the United States for those expenses,” proposed 18 U.S.C.
811(c)(captions omitted))
S.1655 (“(1) The court, in imposing a sentence on a defendant who has been convicted
of an offense under subsection (a), shall order the defendant to reimburse the United States
or a State for any expenses incurred by the United States or a State incident to the
investigation of the offense, including the cost of any response made to protect public health
or safety. (2) A person ordered to reimburse the United States for expenses under paragraph
(1) shall be jointly and severally liable for such expenses with each other person, if any, who
is ordered under this chapter to reimburse the United States or any State,” proposed 18 U.S.C.
2339C(c) (captions omitted)).
S. 1666 (“Notwithstanding and in addition to sections 3663 and 3663A of this title and
(continued...)

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Federal authorities would be entitled to mandatory reimbursement for the costs of
hoax-related investigations under each of the proposals. The Schumer/DeWine/Hatch,
Hutchinson/Sessions and Biden/Hatch bills explicitly include the costs of responses made
to protect public health and safety. The Hutchinson/Sessions proposal extends only to
federal costs. Biden/Hatch requires reimbursement of both federal and state authorities.
The Schumer/DeWine/Hatch offering covers expenses incurred incident to the
investigation regardless of who incurs them. The House-passed bill and its Feinstein
counterpart insist on reimbursement of any party for expenses incident to any emergency
or investigative response. Most explicitly sweeping of all, the Leahy proposal requires
restitution to victims for losses suffered and reimbursement for federal and state
governmental entities for expenses incurred in response.
Some members of the House Judiciary Committee objected to the mandatory nature
of the reimbursement provision in the House bill on the grounds that it would negate any
prospect of individualized sentencing and that its impact would be disproportionately felt
by the economically disadvantaged, H.Rept.No. 306.29
Constitutional Questions
First Amendment.
Whenever communications are outlawed First Amendment free speech questions are
likely to arise. A statute “which makes criminal a form of pure speech, must be interpreted
with the commands of the First Amendment clearly in mind.”30 Not all speech, however,
enjoys First Amendment protection. The Supreme Court has observed on a number of
occasions that the First Amendment affords violence and the threat of violence no
protection.31 But only “true threats” are unshielded; political hyperbole, obvious jokes,
and the like, do not qualify as threats. “First Amendment concerns are satisfied by . . .
excluding statements which are, when taken in context, not ‘true threats’ because they are
conditional and made in jest.”32 The speaker need not intend, or even have the capacity,
to carry out his promise of criminal harm.33 It is enough under the circumstances that
those to whom the threat is communicated reasonably believe the speaker is able and
28(...continued)
any other civil or criminal penalty authorized by law, the court shall order – (1) restitution to
all victims of an offense under subsection (a), including any losses suffered by a victim as a
proximate result of the offense; and (2) the defendant to reimburse all Federal, State, and local
government, entities for any expenses incurred in response to the offense to protect public
health or safety,” proposed 18 U.S.C. 881(b) (captions omitted)).
29Supra, note 1, at 25-6 (additional views of Reps. Conyers, Scott, Jackson-Lee and Waters).
30Watts v. United States, 397 U.S. 705, 707 (1969).
31E.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).
32United States v. Francis, 164 F.3d 120, 123 (2d Cir. 1999).
33United States v. Viefhaus, 168 F.3d 392, 395-96 (10th Cir. 1999).

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intends to carry it out. The true threat, one beyond the pale, is one “that the recipient of
the in-context threat reasonably feared . . . would be carried out.”34
And so it is with the hoax which differs from the threat in that the speaker need not
be the agent of harm. The courts have long observed, as the Second Circuit noted when
considering a First Amendment challenge to the transportation hoax statute:35 “If the
statute so far as it applied to aircraft were limited to making criminal the imparting of false
information with respect to the existence of a bomb on a loaded aircraft, there could be
little doubt that the giving of the false information would be beyond the protection of the
First Amendment. It would fall within the principle of the false cry of fire in a crowded
theater, the classic illustration of unprotected speech given by Mr. Justice Holmes.”36
The fact that the speaker knows the hoax is false removes it even farther from the
shelter of the First Amendment. Even in the arena of public debate where free speech
concerns are most strongly felt, those who make harmful statements of fact that they know
to be false may claim no First Amendment protection.37
The criminal sanctions in each of the bills would appear to survive First Amendment
scrutiny since each is cast so that criminal liability turns upon the offender’s knowing,
creditable but false communication of the existence of a dangerous criminal condition or
threat of such a condition.
The civil liability and civil penalty provisions might pose a more difficult issue. Two
of the bills (S. 1658 and S. 1666) have only criminal and reimbursement components. One
(S. 1665) uses identical language to describe the elements of the criminal and civil wrongs
it proscribes. The others (H.R. 3209/S. 1719 and S. 1659), however, use identical
language except that their civil penalty/civil cause of action omits one of the elements
found in their criminal prohibition, i.e., that the hoax be objectively creditable (“under
circumstances where such information may reasonably be believed”). In the case of a
threat, this deletion would appear to usher in First Amendment problems. The presence
of some creditable anticipation of the announced harm is what separates the true threat
from the statement protected by the First Amendment. On the other hand, the First
Amendment is less protective of intentional false statements. A threat need not be false,
but a hoax must be. In the case of a hoax, the courts have given no clear indication of
whether a less than creditable statement of impending harm loses its First Amendment
protection because the speaker also knows the statement is false.
Moreover, hoax sentences might be thought to raise First Amendment issues, similar
to those raised by “hate crimes” statutes. Following enactment of the proposals, the
Sentencing Guidelines would increase the sentencing range for a hoax if the offender were
motivated by the victim’s race, color, religion, national origin, ethnicity, gender, disability,
34United States v. Morales, 272 F.3d. 284, 287 (5th Cir. 2001).
3518 U.S.C. 35.
36United States v. Rutherford, 332 F.2d 444, 446 (2d Cir. 1964).
37New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

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or sexual orientation.38 The question would be, when two people commit the same crime,
should the sentencing guidelines provide that a person with hate in his or her mind receive
a higher sentence than the person with a more trivial motive.39 The Supreme Court has
made it clear, however, that motivation is a valid basis for sentencing distinctions, the First
Amendment notwithstanding.40
Double Jeopardy.
Double jeopardy concerns may have induced the creation of crimes and civil penalties
or causes of actions with different elements. The Fifth Amendment’s double jeopardy
clause command that no person “be subject for the same offense to be twice put in
jeopardy of life or limb,” prohibits multiple prosecutions by the same sovereign for the
same offense.41 A second prosecution is permissible if the offenses are not the same, that
is if “each requires proof of a fact which the other does not.”42
The reference to “life or limb” notwithstanding, the clause is not restricted to
instances where an individual is twice exposed to the peril of execution or imprisonment
for the same offense. The Supreme Court articulated the applicable standards for whether
a crime and a parallel “civil penalty” for the same misconduct may raise double jeopardy
concerns in Hudson v. United States:43
The clause protects only against the imposition of multiple criminal
punishments for the same offense. . . . Whether a particular punishment is
criminal or civil is, at least initially, a matter of statutory construction . . . . Even
in those cases where the legislature has indicated an intention to establish a civil
penalty, [the Court has] inquired further whether the statutory scheme was so
punitive either in purpose or effect as to transform what was clearly intended as
a civil remedy into a criminal penalty . . . . In making this latter determination,
the factors listed in Kennedy v. Mendoza-Martinez,44 provide useful guideposts,
including: (1) whether the sanction involved an affirmative disability or restraint;
38U.S.S.G. § 3A1.1(a).
39R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Wisconsin v. Mitchell, 508 U.S. 476
(1993).
40“But motive plays the same role under the Wisconsin statute as it does under the federal and
state antidiscrimination laws, which we have previously upheld against constitutional
challenge. Title VI of the Civil Rights Act of 1964, for example, makes it unlawful for an
employer to discriminate against an employee because of such individual’s race, color,
religion, sex, or national origin....[I]n R.A.V. v. St. Paul, 505 U.S. 377, 389-90 (1992), we
cited Title VII...as an example of a permissible content-neutral regulation of conduct,”
Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993)(emphasis in the original).
41Monge v. California, 524 U.S. 721, 727-28 (1998); Abbate v. United States, 359 187, 196
(1959).
42Grady v. Corbin, 495 U.S. 508, 515 (1990).
43522 U.S. 93, 99-100 (1997)(emphasis in the opinion of the Court)(internal quotation marks
and some citations omitted).
44372 U.S. 144, 168-169 (1963).

CRS-10
(2) whether it has historically been regarded as a punishment; (3) whether it
comes into play only on a finding of scienter; (4) whether its operation will
promote the traditional aims of punishment-retribution and deterrence; (5)
whether the behavior to which it applies is already a crime; (6) whether an
alternative purpose to which it may rationally be connected is assignable for it;
and (7) whether it appears excessive in relation to the alternative purpose
assigned. It is important to note, however, that these factors must be
considered in relation to the statute on its face, and only the clearest proof will
suffice to override legislative intent and transform what has been denominated
a civil remedy into a criminal penalty.
The House bill and its Senate companion seem likely to withstand double jeopardy
challenges for at least three reasons. First as noted earlier, the crime and cause of action
they create have different elements. Second, double jeopardy concerns would only be
implicated if the United States brings the cause of action. Suit by a state or private party
would have no double jeopardy consequences, since double jeopardy is only implicated if
both prosecutions are initiated by the same party. Third, it is characterized as a civil cause
of action to compensate those who have suffered by the wrong it defines. Nothing in its
provisions implies a punitive purpose, certainly nothing so draconian as to warrant
overcoming the basic presumption and concluding that the cause of action was created to
punish, that it is a criminal sanction in disguise.
The same can be said for the civil penalty provision of the Hutchinson/Sessions
proposal, except for the fact that its civil penalty may only be enforced by the United
States consequently the proposal cannot claim the different party distinction.
The civil penalty established in the Biden/Hatch bill cannot assert a “different
elements” defense because it uses the same elements of the crime and civil penalty it
creates. Nevertheless, no double jeopardy questions would arise when a state seeks to
enforce the civil penalties and the penalty it envisions seems both compensation-related
and not so excessive as to overcome the basic presumption that the penalty should not be
characterized as a criminal penalty.
Finally, the presence of a post-conviction reimbursement device available for the same
costs covered by the civil penalty suggests that the civil penalty provisions may have been
intended to provide an alternative to prosecution in less serious cases.
In much the same manner, exposing an individual to both criminal penalties and a
reimbursement order as a consequence of conviction poses no double jeopardy problems.

CRS-11
Appendix A. Threats, Hoaxes and Related State
Statutes
Alabama: Ala. Code §§13A-6-23 (menacing: by physical conduct causing another to
reasonably fear imminent serious physical injury); 13A-10-8 (false alarms)
Alaska: Alaska Stat. §§11.61.120 (threatening telephone call); 11.56.810 (terroristic
threatening, i.e., false report of a dangerous condition that causes fear in another,
evacuation of a building or public inconvenience)
Arizona: Ariz.Rev.Stat.Ann. §§13-2916 (telephone threats to injure person or property),
13-2921 (harassment ,i.e., continuous following or repeated threatening communications
or actions)
Arkansas: Ark.Code Ann. §§5-71-208 (harassment is following, surveillance, repeatedly
causing alarm in order to annoy or alarm another), 5-71-209 (harassing communications
are those calculated to annoy or alarm); 5-71-210 (communicating a false alarm)
California: Cal. Penal Code §148.1 (false report of explosive or facsimile bomb)
Colorado: Colo.Rev.Stat. §§18-3-206 (menacing: placing another in fear of bodily injury);
18-8-110 (false report of explosives, chemical or biological agents, radioactive substance)
Connecticut: Conn.Gen.Stat.Ann. §§53a-180, 53a-180a (false alarms)
Delaware: Del.Code Ann. tit.11 §§602 (menacing: causing fear of imminent injury by
physical action), 1311 & 1312 (harassment: communicating in a manner likely to alarm);
621 (terroristic threat: threat to inflict injury or damage or false alarm causing an
evacuation, serious inconvenience or terror)
Florida: Fla.Stat.Ann. §§790.163-790.165 (false alarms)
Georgia: Ga.Code Ann. §§16-11-39 (telephone threats of bodily harm); 16-11-37
(terroristic threats to injure or damage property in order to terrorize, cause evacuation, or
cause serious public inconvenience -- need not be false), 16-10-28 (false bomb scare)
Hawaii: Hawaii Rev.Stat. §§711-1106 (harassment: telephone threat of bodily injury or
damage); 701-1014 (false alarms)
Idaho: Idaho Code §§18-7901 to 18-7904 (malicious harassment: threat to cause injury
or damage); 18-3313 (false reports of explosives in public or private places)
Illinois: Ill.Comp.Stat.Ann. ch.720 §§5/12-9 (threaten a public official),5/26-1 (false
alarm or bomb scare), 135/1-1 (threatening phone calls)
Indiana: Ind.Stats.Ann. §§35-45-2-2 (harassment: communication made with the intent
to alarm); 35-44-2-2 (false bomb scares or false reports of product contamination)

CRS-12
Iowa: Iowa Code Ann. §§708.7 (harassment: communicating a threat or false alarm),
712.8 (threaten or attempt to place an explosive); 712.7 (false alarm concerning the
placement of a bomb or incendiary device)
Kansas: Kan.Stat.Ann. §§21-4113 (harassment by telephone: phone threats); 21-4110
(false alarm)
Kentucky: Ky.Rev.Stat. §§508.050 (menacing: placing another in fear of imminent
injury), 508.080 (terroristic threatening includes both threats to inflict injury or damage
and false alarms causing evacuation), 525.070 (harassment: subjects another to conduct
causing alarm), 525.080 (harassing communication: communicates in a manner designed
to cause alarm)
Louisiana: La.Rev.Stat.Ann. §§14:285 (threatening telephone communications), 14:40.1
(terrorizing: false alarm to cause fear of injury, evacuation, or serious public disruption);
14:54.1 (false alarm concerning arson), 14:54.5 (possession of a fake explosive device)
Maine: Me.Rev.Stat.Ann. tit.17-A §§210 (terrorizing: threaten to cause fear or
evacuation of a building or facility -- threat need not be false), 506(harassment by
telephone includes making threatening calls), 506-A (harassment: threatening conduct after
being warned by law enforcement officer), 509 (false report or alarm)
Maryland: Md.Ann. Code art.27 §§121A (threatening state officials with injury), 151A
(false statement of rumor as to bomb)
Massachusetts: Mass.Gen.Laws Ann. ch.269 §14 (false report of explosives or other
dangerous substances)
Michigan: Mich.Comp.Laws Ann. §750.540e (telephone threats of injury or damage)
Minnesota: Minn.Stat.Ann. §609.713 (bomb scares)
Mississippi: Miss.Code Ann. §§97-29-45 (telephone threats of injury or damage), 97-37-
21 (false report of explosives)
Missouri: Mo.Ann.Stat. §§565.090 (harassment: written or telephone threat), 575.090
(false bomb report)
Montana: Mont.Code Ann. §§45-5-203 (intimidation: threat to inflict injury), 45-8-101
(bomb scares)
Nebraska: Neb.Rev.Stat. §28-907 (false bomb report)
Nevada: Nev.Rev.Stat. §§200.571 (harassment: threaten injury or damage), 199.300
(threatening public officials), 202.840 (false bomb threat)
New Hampshire: N.H.Rev.Stat.Ann. §§644:4 (harassment: threat of injury), 644:3 (false
alarm of fire, explosion or other catastrophe)

CRS-13
New Jersey: N.J.Stat.Ann. §§2C:33-4 harassment: repeated or alarming conduct
committed to cause alarm), 2C:33-3 (false warning of fire, explosion, bombing, crime,
catastrophe or emergency)
New Mexico: N.M.Stat.Ann. §§30-20-16 (bomb scares), 30-7-20 (mailing or sending a
facsimile or hoax bomb), 30-7-21 (false report concerning fire or explosives,), 30-3A-2
(harassment: pattern conduct intended to terrorize)
New York: N.Y.Penal Law §§240.25-240.20 (harassment: repeated acts causing fear of
injury), 240.50-240.60 (false report, likely to cause alarm, of crime, catastrophe or
emergency), 120.15 (menacing: cause fear of imminent serious injury)
North Carolina: N.C.Gen.Stat. §§14-69.1 (false bomb report), 14-69.2(preparing a false
bomb), 14-277.1 (communicating threats of physical injury)
North Dakota: N.D.Cent.Code §§12.1-17-05 (menacing: threat of imminent serious
injury), 12.1-17-07 (harassment: threatening telephone call), 12.1-11-03 (false report to
law enforcement officers of situation requiring emergency action)
Ohio: Ohio Rev.Code Ann. §§2903.21 (aggravated menacing: cause another to fear
serious injury), 2903.22 (menacing: cause fear of injury), 2917.21 (telephone threats of
injury or damage), 2917.31 (causing evacuation or serious public inconvenience by false
warning of fire, explosion, crime, or other catastrophe), 2917.32 (false warning of fire,
explosion, crime, or other catastrophe)
Oklahoma: Okla.Stat.Ann. tit.21 §1172 (threatening telephone calls)
Oregon: Ore.Rev.Stat. §§163.190 (menacing: place another in fear of imminent serious
physical injury), 166.065 (harassment: conveying threats of serious injury), 162.375
(initiating false alarms to officials responsible for emergencies)
Pennsylvania: Pa.Stat.Ann. tit.18 §§2709 (harassment: threatening physical conduct or
conduct designed to alarm with no legitimate purpose), 4905 (false report to agencies
responsible for public safety)
Rhode Island: R.I.Gen.Laws §§11-42-4 (threatening public officials with injury), 11-32-9
(false bomb threats), 11-35-18 (telephone bomb threats)
South Carolina: S.C.Code §§16-17-430 (threatening telephone calls), 16-17-725 (false
report to agencies responsible for emergencies); 16-11-550 (false threat to injure or
damage by explosive or incendiary), 16-11-555 (fake bombs)
South Dakota: S.D.Cod.Laws §§49-31-31 (threatening telephone calls), 22-19A-1 to 22-
19A-7 (false alarms), 22-14A-22 (falsely reporting a bomb)
Tennessee: Tenn.Code Ann. §§39-17-308 (harassment: telephone threats), 39-16-502
(false alarms)
Texas: Tex.Penal Code §§42.07 (harassment: telephone threats, false alarms), 42.06
(false bomb scares), 46.08 (hoax bombs)

CRS-14
Utah: Utah Code Ann. §§76-5-107 (threats against life or property), 76-5-106
(harassment: written threat to commit a violent crime), 76-9-105 (false alarms concerning
fires, bombings, or catastrophes);
Vermont: Vt.Stat.Ann. tit.13 §§1751-1754 (false alarms), 1027 (threatening telephone
calls)
Virginia: Va.Code §§18.2-60 (written threat to injure), 18.2-60.1 & 18.2-60.2 (threats
against the Governor and the Governor's family), 18.2-427 (telephone threats), 18.2-83
(false information concerning property damage by bomb or incendiary)
Washington: Wash.Rev.Code Ann. §§9A.36.090 (threats against the Governor or the
Governor's family), 9A.46.020-9A.46.060 (harassment: threats of injury or damage),
9.61.230 (telephone threats), 9A.84.040 (false reporting of fire, explosion, crime,
catastrophe, or emergency likely to result in evacuation of a building or facility or to cause
public inconvenience)
West Virginia: W.Va.Code §§61-6-17 (false reports concerning bombs and other
explosives), 61-6-20 (false report of an emergency due to explosion, crime, catastrophe,
accident, illness or other emergency)
Wisconsin: Wis.Stat.Ann. §§947.013 (harassment: threatening physical contact), 947.012
(telephone threats), 941.13 (false alarms made to public officials), 947.015 (bomb scares)
Wyoming: Wyo.Stat. §6-5-210 (false alarms made to public officials)

CRS-15
Appendix B. Comparison of Anti-Hoax Proposals
H.R. 3209/S. 1719
S. 1658
S. 1659
S. 1665
S. 1666
Crime:
knowingly
knowingly
knowingly
knowingly
knowingly and
Intent
maliciously
Predicates
18 U.S.C. 175, 229,
18 U.S.C. 175, 229, 831,
18 U.S.C. 175, 229, 831
18 U.S.C. 175, 229, 831,
18 U.S.C. 175, 229, 831,
831, 2332a
2332a
2332a
2332a
Official Reaction
none required
likely to cause
none required
none required
likely to cause
government response
government response
Jurisdiction
predicate offenses
predicate offenses
predicate offenses
use of mail, phone,
predicate offenses
telegraph, instrument of
commerce; affect on
commerce
Civil Liability:
cause of action for any
no provision
civil penalty for U.S. for
civil penalty for U.S. or
restitution to any victim for
Generally
party for emergency or
larger of $10,000 or costs
State for larger of
proximately caused losses
investigation related
to investigate and respond
$10,000 or costs of
expenses
(including public health
responding
and safety)
Creditable Hoax
not required
no provision
not required
likely to impart false
reasonable to believe
impression
Reimbursement:
any party
unspecified
U.S.
U.S. or State
U.S. , State, or local
To Whom?
For What?
expenses incident to
expenses incident to
expenses incident to
expenses incident to
expenses incurred in
emergency and
investigation (including to
investigation (including to
investigation (including
response to protect public
investigative response
protect public health or
protect public health or
to protect public health or
health or safety
safety)
safety)
safety)

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