Are threats of the unlawful sort inescapable? Perhaps. And it is likely best for recipients to simply ignore threats as best they can, knowing how empirically rare it is for any actual violence to ensue.
Still, the frequency of unlawful threats is not fixed. And those directed at Ford and Kavanaugh provide an unusually opportune moment for law enforcement to deter some future threats by showing that those who’ve issued them on either side of this highly visible, intensely polarizing matter have put themselves at risk of legal punishment. For that reason, more resources than usual should be dedicated to pursuing those who sent intentional, unlawful threats about this matter.
I do not urge a crackdown lightly. In general, I believe the United States is over-policed, that nonviolent crimes are frequently the best place to ease off, and that a culture of free speech is hugely important. The First Amendment protects lots of hateful, morally odious missives (including “May you, your husband, and your kids burn in hell” and “Tell your husband to kill himself”). Authors of merely odious messages should be left alone by police, consistent with what the Supreme Court has called America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
To be even more specific about what a crackdown should not include, I’d quote an amicus brief once filed by the ACLU and the Cato Institute:
Words are slippery things, and one person’s opprobrium may be another’s threat. A statute that proscribes speech without regard to the speaker’s intended meaning runs the risk of punishing protected First Amendment expression … Moreover, where the line between protected and unprotected speech is unclear, a speaker may engage in self-censorship ... Statutes criminalizing threats without requiring the government to demonstrate a culpable mens rea are thus likely to sweep in speech protected under the First Amendment … To ensure adequate breathing room for such speech … subjective intent to threaten is an essential element of any constitutionally proscribable true threat.
At the same time, the federal courts and the Supreme Court have kept the “true threats” exception to the First Amendment relatively narrow (even in spite of ambiguities that remain after Elonis v. United States), reining in prosecutors who might otherwise make mischief. Those who intentionally threaten prominent civic actors chill political speech. And securing convictions against lawbreakers who threatened both Ford and Kavanaugh would underscore the fact that such behavior is legally and morally wrong regardless of the merits of the respective target’s behavior.