Fifth Circuit revives terroristic threat charges against Roblox player

(CN) — A three-judge Fifth Circuit panel reinstated a federal indictment Thursday accusing a Roblox user of threatening to attack a Christian music festival, overturning a federal judge’s ruling that the user’s comments constituted First Amendment protected speech.

James Wesley Burger, an 18-year-old from Round Rock, Texas, is accused of making threatening comments on the online gaming platform Roblox, on or around January 23, 2025, including threats to “deal a grievous wound upon the followers of the Cross,” that he had “come to conclude it will be the 12 of Shawwal aa/And it will be a music festival/Attracting bounties of Christians,” that he would “Detonate what I’ve prepared Of munitions And use my firearms To take many with me,” and “wish me luck On the path of martyrdom In’shaa’allah.”

Burger made the statements in a Roblox experience known as “Church” in which users can explore a three-dimensional church environment and interact with other users. A federal judge had reasoned in his order dismissing the indictment that a jury would need to be convinced that other players considered his statements a substantial risk, even in the context of role-playing in the game.

But the appeals panel ruled in an unsigned opinion that the issue of whether Burger’s statements constituted true threats should be decided by a jury and noted other users had taken Burger’s statements seriously and had reported them to the FBI.

“Here, the district court’s findings resolved a disputed factual question: whether the context of the Church experience would lead a reasonable player to believe that Burger was role-playing rather than expressing a sincere intent to commit violence,” the panel wrote. “Given that the district court’s dismissal of each count depended on the ‘role-playing context’ of the Church experience, the testimony from the tipsters would at the very least ‘provide a more certain framework for [the district court’s] analysis.’”

The Fifth Circuit panel wrote in its opinion that “avatars in the Church experience included skinheads arguing about race, balaclava-clad members of the Irish Republican Army, Nazi S.S. officers denying the Holocaust, and avatars dressed in Middle Eastern clothing debating the Koran and discussing violent jihadism.”

A grand jury had charged Burger with three counts of making interstate threatening communications, finding he made the comments with reckless disregard of “a substantial risk that his communication would be understood as a threat.”

But U.S. District Judge Alan Albright of the Western District of Texas dismissed the indictment in November 2025, finding Burger had made the comments in the context of the role-playing and therefore “no reasonable juror could find that these statements were true threats outside the purview of the First Amendment.”

“There is no showing that Mr. Burger recklessly disregarded the risk that other online characters, also playing a game, would see his fictional character’s statements and understand them to be a true threat,” Albright, a Donald Trump appointee, wrote then.

Albright had also ruled outside evidence discovered after the fact, such as “Mr. Burger’s computer search history and later-discovered communications and sharing of bomb-making instructions and photographs with another individual,” could not be used to support the indictment, as “there is no claim that a recipient of the threatened communications was made privy to that evidence.”

Chief U.S. Circuit Judge Jennifer Walker Elrod, a George W. Bush appointee, U.S. Circuit Judge Jerry Smith, a Ronald Reagan appointee, and U.S. Circuit Judge Cory Wilson, a Donald Trump appointee, made up the panel.

The Department of Justice and a public defender representing Burger did not immediately respond to requests for comment made outside of normal work hours.