The Rabbit Hole: A Texas Criminal Case Tests a Decades-Old Statute

Editor’s Note: In this week’s The Rabbit Hole, our reporter Peter Beck, using previously unreported court filings and interviews, checks back in on a story we reported months ago about a teenager whose criminal case may redefine the legal limits of free speech and violent rhetoric. Beck reports on the new push and pull between prosecutors, federal defenders, a Texas judge and now an appellate court over what to do with a terminally online defendant. 

Judge Alan Albright was blunt, “I’ve been on the bench [for] seven years. I’ve spent more time thinking about this case than I’ve ever spent thinking about anything else I’ve done on the bench since right before our hearing, when I was preparing through a weekend other than a second half of good football for the first time this year. I have thought of almost nothing else other than this case.”

The dilemma Judge Albright faced that late November morning was whether to dismiss charges against a nineteen-year-old alleged Islamic State sympathizer, James Wesley Burger, who federal prosecutors say threatened to commit a terror attack on a Christian music festival in the name of Jihad. Burger, a lanky and isolated high school senior from suburban Texas, had been arrested by FBI agents in January 2025, after two other high school students reported comments he made while playing Roblox, an online game popular with hundreds of millions of users.

After nearly a year of being detained since his arrest, Burger, however, was about to be able to go home. On November 24, 2025, Judge Albright granted the defense’s motion to dismiss the indictment against Burger for three counts of interstate communication of threats. In the days after, federal prosecutors scrambled to file motions for Judge Albright to stay the dismissal and keep Burger detained. The nineteen-year-old was released on November 25 to his family, who he’s under the care of today.

Now, the dismissal and Burger’s release are up for argument at the U.S. Court of Appeals for the Fifth Circuit, where the Justice Department seeks to convince the conservative-leaning appellate court that Burger’s threats were severe enough to overcome First Amendment concerns voiced by his attorneys and Judge Albright. The case, which stood out previously for its cartoonish online context, now carries broader implications for how federal threat cases are prosecuted in the Fifth Circuit—and possibly beyond.