Fifth Circuit Struggles With Appeal in Roblox Threats Case

Fifth Circuit judges sounded skeptical of whether they could order the confinement of a Texas man accused of making threats on an online game platform.

At arguments Tuesday, the three-judge panel weighed the federal government’s appeal of a lower court ruling for James Wesley Burger. He’s been charged with making a “true threat” against a Christian music festival on Roblox, where people can role play as different characters.

US District Judge Alan Albright in Austin found that Burger’s speech is protected under the First Amendment, dismissing the indictment and repeatedly ordering Burger’s release, which has teed up multiple appeals to the New Orleans-based circuit.

Fifth Circuit Chief Judge Jennifer Walker Elrod at argument pressed Justice Department lawyer Zachary Richter on how to weigh Burger’s statements as charged in the indictment. The Fifth Circuit has stayed the dismissal of the charges.

Elrod asked if the trial judge should consider each of Burger’s statements on their own to determine if a reasonable person would consider them to be threats, the first step in deciding if a comment constitutes a true threat. She also asked if the court should consider internet searches made about events in the Austin area around the time of the threat.

Richter said those searches don’t apply in reaching the reasonable person standard, but does in conducting the second part of the analysis, which includes considering the speaker’s state of mind.

Richter said Albright was wrong to reach that determination himself. He said there are “disputed facts” in the case that should go to a jury.

Federal prosecutors are also asking the appeals court to reassign the case to another district judge. Richter pointed to comments by Albright about how, if he were on the jury, he would vote to acquit.

Elrod said that judges sometimes put themselves in the position of a juror in weighing a case, and that the acquittal comments might not be from Albright’s point of view as a judge.

Carl Hennies, an assistant federal public defender representing Burger, said the comments had to be more specific to rise to the level of a true threat. He said the statements have to be looked at individually, and without weighing any other evidence gathered in the case.

“So we just look at this video game and ignore everything else?” asked Judge Cory Wilson.

Hennies said prosecutors appeared to be trying to “shoehorn an attempt case” with the threats charge.

He also told the panel that reassigning the case to another district judge isn’t necessary. But Judge Jerry Smith said that he couldn’t recall another trial judge making the kinds of statements that Albright did.

Elrod also seemed dubious that the circuit had jurisdiction over the final release order Albright issued, as prosecutors hadn’t appealed it. Richter said the appeals court could weigh in on it because they hadn’t returned the case to the district court which meant Albright improperly handed down the order, but Elrod repeatedly disagreed with that premise.

The case is USA v. Burger, 5th Cir., No. 25-50976, oral argument 1/20/26.