Free Speech

E-Mails to Sen. McConnell Found Not to Be Criminally Threatening

"Weiss's comments were also steeped in 'rage and frustration,' and they were indisputably violent. Nonetheless, read in context, the statements predicted that other people would hurt Senator McConnell, not that Weiss would."

|The Volokh Conspiracy |

Howard Weiss had sent eight e-mails (anonymously) to Senator Mitch McConnell in 2018 and 2019 via the Senator's online form. Today's decision by Judge Charles Breyer (N.D. Cal.) in United States v. Weiss, concluded that the e-mails didn't fall within the "true threats" exception, as it has been defined within the Ninth Circuit:

A statement is objectively a true threat only if it "would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure" another person. In United States v. Bagdasarian, the Ninth Circuit reversed the defendant's conviction for threatening to kill presidential candidate Barack Obama, holding that predictive and exhortatory statements, such as "Obama fk the niggar, he will have a 50 cal in the head soon," were not true threats. Such statements conveyed "no explicit or implicit threat on the part of [the defendant] that he himself will kill or injure Obama." The defendant's further statement, "[S]hoot the nig," was "an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration," but it did not suggest that the defendant himself was going to shoot Obama.

Weiss's comments were also steeped in "rage and frustration," and they were indisputably violent. Nonetheless, read in context, the statements predicted that other people would hurt Senator McConnell, not that Weiss would. See, e.g., Opp'n Ex. A1 (stating, "You will die in thestreet by DC resistance motherfucker!!!!!" but not identifying himself as being part of the "DC resistance"); Opp'n Ex. A5 (stating, "The Kentucky Resistance is going to hang you by your pussy lips and punish you," but not identifying himself as being part of "The Kentucky Resistance"); Opp'n Ex. A7 (stating, "The Kentucky Resistance says they are going to cut your throat from ear to ear and then your gook wife's," and using the word "they"); Opp'n Ex. A8 (stating, "… the Kentucky Resistance is going to totally execute you. They have stated youare a deadman! And soon. We are so glad to hear that they are finally going to take action. We cannot wait to know you are dead," and using the word "they").  It is true that Senator McConnell's staff considered some of these messages threatening. See, e.g., Opp'n Ex. A1 ("Please see below threats that came in through our online message system"). But just as the statement, "Obama fk the niggar, he will have a 50 cal in the head soon" was not a true threat, see Bagdasarian, no reasonable jury could find that Weiss's statements predicting that other people would harm Senator McConnell met the definition of true threats, see also New York ex rel. Spitzer v. Operation Rescue Nat'l, 273 F.3d 184, 196 (2d Cir. 2001) ("generally, a person who informs someone that he or she is in danger from a third party has not made a threat, even if the statement produces fear. This may be true even where a protestor tells the objects of protest that they are in danger and further indicates political support for the violent third parties.")….

A statement is subjectively a true threat if the defendant "made the statements intending that they be taken as a threat." "The speaker need not actually intend to carry out the threat." Here, though the government asserted at the motion hearing that Weiss's conduct meets the subjective test for a true threat, it provided no support for that assertion. In fact, the government asserts repeatedly in its briefing that Weiss had the intent to harass Senator McConnell, but never mentions an intent to threaten. See, e.g., Opp'n at 1 ("Defendant Howard Weiss is charged with the harassing use of a telecommunications device … with intent to harass U.S. Senator Mitch McConnell."); id. ("From October 2018 through October 2019, defendant used his cell phone to send a total of eight emails to Senator McConnell … with the intent to harass Senator McConnell"); Opp'n at 20 ("the references to Senator McConnell are simply direct and circumstantial evidence of defendant's intent to harass a specific person"), id. at 21 (arguing that the relevant intent was the intent to harass, not the intent to convey a political opinion).

The only evidence of Weiss's intent that the Court is aware of comes from Weiss's interview with law enforcement, in which he admitted to having an intent to harass the Senator, rather than to threaten him. He told law enforcement that he decided to harass Senator McConnell because the senator made political decisions with which he disagreed. He admitted that he used racial slurs in furtherance of his intent to harass the Senator, saying, "that's just terrible harassment, that's just anger and bullshit."

Weiss's words were violent and repugnant, as even he seems to have eventually understood. But because he did not convey that he himself would harm Senator McConnell, and the government has not identified any basis for concluding that Weiss intended to threaten, rather than harass, the Senator, the "true threat" exception does not apply.

Here are the e-mails, which were quoted in part above:

turtle, If you push this for Friday, the resistance is coming to DC to slash your throat. You will die in thestreet by DC resistance motherfucker!!!!! You will not live to regret it!!!!!! …

turtle cum drinker, The yelling resistance should have put a bullet in your head and then kill all the people you love! …

[Subject:] Your intelligence is zero … You motherfucking scumbag crook turtle[.] Go fuck yourself. I have been furloughed and you heartless bastard could give a shit. You fucking criminal. Someone needs to kill you! You are going to lose next election and we will get rid of your satanic evil ass you loser fuckhead

[Subject:] You are a criminal Russian asset … Turtle, You motherfucking chinc lover, russian paid scumbag. With your fucking chinc father-in-law bank rolling you. You fucking animal better get ready for the biggest loss of your shitty heartless evil toxic life. We know you will believe this is just unimportant bullshit, however you better not….

[Subject:] Losers will die turtle, … Go fuck yourself you fucking criminal motherfucker. In 2020, You are fucking a closed case. You are a fucking dog who will be put down!!! The Kentucky Resistance is going to hang you by your pussy lips and punish you for what you think you got away this. Your consequential decision will afford you the most torture you will ever endure. scalia was the biggest asshole in the judicial system ever.

[Subject:] The 2020 election … You racist fucking criminal chinc loving motherfucker. You are going down in2020 and then you will suffer the consequences and they will burn your life down!

[Subject:] We need your chink whore to go back "To where the fucking gook came from. You motherfucking racist scum. The Kentucky Resistance says they are going to cut your throat from ear to ear and then your gook wife's." …

[Subject:] The gravity of your nonexistence … Whether you believe it or not, after watching Frontline the Kentucky Resistance is going to totally execute you. They have stated youare a deadman! And soon. We are so glad to hear that they are finally going to take action. We cannot wait to know you are dead.

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  1. I suppose the irony of calling McConnell “racist scum” in the sentence immediately following a reference to his “chink whore” wife was lost on Mr. Weiss.

    1. Apparently. That’s an ugly letter, although I agree it is not a criminal threat.

      Interestingly, Weiss goes beyond “turtle” (a common insult of McConnell) to call him “turtle cum drinker”. I would have to think this will be the first reference to “turtle cum drinker” in the F. Supp’s.

      1. Reminds me of my friend telling me about a particularly “colorful” obscenity case he had come across. He told me it shouldn’t be hard to find on Westlaw, because how many times has the phrase “snake fuckers” been used in the Federal reporter?

  2. Weiss’s comments would fit right in at the Washington Post comments sections.

    1. Throw in a reference to clinger and AK could have written that very comment.

      1. Don’t go bringing Klinger into this.

    2. So true. If you want to see raw hate, read the Post’s comments section.

      1. No need to leave the Volokh Conspiracy for that. Calls for liberals to be placed face-down in landfills; for liberal judges to be gassed; for liberals to be marched to Zyklon showers; for liberals to be shot as they answer their front doors; and more like that can be found in Volokh Conspiracy comments on a recurring basis.

        The Volokh Conspiracy proprietors — who claim to be a free speech champions –censor and ban people who make fun of conservatives while disregarding calls for the murder of liberals.

        If this is the best right-wing academia can offer, the course of the culture war should be as predictable as it has been enjoyable for the liberal-libertarian mainstream.

        1. Yeah…because none that happened. You are becoming delusional AK.

          1. Do you actually read these threads? Lust for liberal blood may not be a dominant theme, but it’s a persistent one.

            1. Yes and I’ve never read one where anyone has advocated for gassing liberals. Ironically, that is a theme prevalent in the Bernie Bros camp though. Maybe AK is confused.

  3. I do wonder how cases like this actually progress to the point of being charged. I would have assumed that it’s pretty routine for messages like this to be received to be received by even moderately prominent politicians—much less someone like McConnell. Did this guy just get unlucky? Or am I wrong, and are people actually more circumspect than I’ve been giving them credit for?

    1. Who needs to be cautious or conscientious when QI will save them from accountability and liability? (In my best Oprah voice) “You get a criminal charge!” “And you get a criminal charge!” “Everyone gets a criminal charge for sending an email that someone subjectively labeled ‘harassing!’”

      1. I’m not following.

    2. Everybody is constantly threatening and throwing insults at each other so this stuff usually doesn’t go anywhere unless you are a female e-celeb or a female progressive politician then every slight makes the frontpage news cycle and you get to whine and moan on Oprah or Twitter to sad piano music and a swaying pastel background how as a STRONG TOUGH INDEPENDENT WOMYN how hard you have it and how scared and helpless you feel and how you need massive help and a raft of new intrusive laws from Daddy gubmint to protect you as a female.

      1. “Everybody is constantly threatening and throwing insults at each other”

        You must run in a lot nastier circles than I do. My impression is that most people rarely insult and virtually never threaten.

        But politicians are exposed to so many people that the exceptions still amount to a lot of people.

        Still, it’s getting harder and harder for Republican politicians to laugh these things off, ad Democrats go off the deep end.

        1. Oh please, Brett. Democrats going off the deep end? Tell us, who are this generation’s Democrat equivalents to Tim McVeigh, Terry Nichols, Gordon Kahl, Eric Rudolph, Dylann Roof, Wade Michael Page, Frazier Glenn Miller, Jim David Adkisson, James Alex Fields, Robert Gregory Bowers, John Timothy Earnest, Patrick Crusius… I could go on, and I’m sure I overlooked some good ones, but those should suffice. And when you come up your list, be sure to compare body counts.

          Face it, Brett, the ’60s and ’70s were the time of extreme left wing American terrorism. Since at least the ’90s, the extreme right has owned that mantle, its only serious competition coming from extremist Islam. Comparitively, with relatively rare, small scale exceptions, left wing extremists in this country have been relegated to brawling with Proud Boys and throwing firecrackers.

          And as for actual Democrats? Apart from that Bernie supporter who shot Scalice, the violent left wants no part of any Democrats, whom they consider indistinguishable from Republicans. The Violent Right, on the other hand, MAGA all the way.

      2. Big bad AOC’s mom taught her not to take lip from any man. That makes her a strong womyn. Except when a man gives her lip. Then she has to complain on national TV.

    3. I can’t think of a conservative speaker who doesn’t have security today. 20 years ago, Ollie North was the only one who did.

  4. “In fact, the government asserts repeatedly in its briefing that Weiss had the intent to harass Senator McConnell, but never mentions an intent to threaten.“

    Whether written in its infinitive, participial, or gerund form, the statutory meaning of “harass” is often misinterpreted with it’s descriptive adjective form. Ask 100 people what qualifies as unlawful harassing speech and you’ll get 100 different answers where “harassing” was used interchangeably with “unwanted,” “embarrassing,” “hateful,” or “lewd,” all of which are also protected speech. Ask 100 people what qualifies as unlawful threats of bodily harm and just like that, everyone understands. Enough with this stupid word already.

  5. Why don’t threats like this which are made all the time to Republicans ever get the endless 24/7 press coverage that the same content when targeting a Dem gets? (Yes I know the answer…)

    1. Because there is no threat here.

      1. Anytime a Dem is called a bad name is makes national news. Like when AOC (might have been) called crazy by a random Republican. That was on for at least three nights straight.

        1. She was called a “fucking bitch” by an older, larger man who was walking with another man. Those are literally “fighting words,” and the law doesn’t require the words be uttered in the presence of the person being spoken about, either, as long as the words are spoken in the sane general space. Men and women get arrested for disorderly conduct for such conduct every single day.

          Just the same, I do get your point that from your perspective, ugly words spoken to and about republicans are ignored and ugly words spoken to or about dems are in the news cycle for a day or two. Might I also point out that the man arrested for sending emails to McConnell found himself in federal court. I’d say he paid a price much larger than having to resign from a board of trustees.

          1. That was so not a fighting word.

          2. Calling someone a bad name is not “fighting words” try again. And the Republican has vehemently denied saying those words. Given the media cannot be trusted with anything these days I am inclined to believe him.

          3. Being called a bitch is worse than a death threat/prediction?

          4. The difference between probable cause for arrest and actual conviction might surprise you.

          5. And AOC could have been carrying an equalizer.
            End of story.

            1. An equalizer to…mean words?

              Because if you want calling someone a bitch to be answered by a gun…

              1. I think Ed meant a can of Coke.

              2. No, if he then tried to rape her — which is what is being implied – *that* should be answered with a gun.

                1. Where was rape implied, Ed?

        2. Pretty sure the reason was because the person who called her a bitch was a *sitting member of the House.* That has some implications in the House rules.

          And what the GOP allows to represent them, but I suspect that ship sailed some time ago.

          Congresspeople of both parties get death threats routinely and neither party makes a federal case of it.
          Go peddle your double-standard elsewhere.

          1. You are getting really bad at defending liberal double standards. Please try again.

            1. What double standard? You just made one up out of whole cloth with your single example being manifestly inapt.

              1. Not really. AOC gets told off. Coverage, nationally for at least four news cycles. McConnell gets death threat. Not a mention in the mainstream media. Pretty blatant double standard.

                1. Susan Collins’ husband gets a letter filled with fake Anthrax at their home in Bangor, Maine — yawn….

                  1. Threats happen often enough no one cares. I worked for a Member and had some threats made over the phone. You log them, and let the security office know and that’s it.

                    Actual substances or bombs less often, but often enough not to make headlines.

                    A sitting member of Congress calling AOC a bitch is a whole ‘nother thing, and an issue for different reasons. We can talk about whether those reasons are legit, but it has no bearing on the situation in the OP.

                    1. And Rashida Tlaib called a sitting President a “motherfucker.” It is a little late to get the vapors over bad language.

                    2. House rules say differently,

        3. I think the coverage was overblown, but I also suspect this story would have gotten attention if the emails had been sent by another senator, rather than a crazy guy in San Francisco.

  6. Probably right, and I’d always prefer that we err on the side of protecting speech, but this really does seem to be a close call.

  7. If this had been a conservative talking about Obama, the leftist Klinton judge, brother of Stephen Breyer, would have found the other way.

    1. Just another peaceful lib engaged in protesting systems of racism….

      1. Whining, whimpering, resentful clingers are among my favorite culture war casualties.

        And, it appears, the Volokh Conspiracy’s target audience.

    2. Aktenberg78: Can you elaborate on how your hypothetical fits United States v. Bagdasarian, where “the Ninth Circuit reversed the defendant’s conviction for threatening to kill presidential candidate Barack Obama, holding that predictive and exhortatory statements, such as ‘Obama fk the niggar, he will have a 50 cal in the head soon,’ were not true threats”? The Bagdasarian opinion was written by Judge Stephen Reinhardt, the leftist Carter judge.

      1. Professor: I was actually thinking of the Harold Turner case, which was not a bona fide threat to any reasonable person.

      2. If the 9th Circuit reversed, it means he was convicted…

        1. The *conviction* was reversed.

  8. Man, whole lotta counterfactual victims around here.

    Those dastardly hypothetical women, Democrats, RAK, WaPO commenters, and alternate-universe judges, when will you leave conservative’s imaginations alone!

    1. Or just hop on to the WaPo comment section right now. Plenty of examples right there if you think these are all fanciful thinking….

        1. I’m pretty sure you have a subscription….

          1. Pretty sure I don’t.
            Used to be a student and got it for free. Now I no longer am, and don’t.

  9. It is a pity that there isn’t some middle ground between “criminal” and “protected” — like “you are an A-Hole” middle ground.

    I understand the slippery slope this would create, but in an ideal world, law enforcement would be able to distinguish between those who are polite and those who are not.

      1. I like that movie as well, but it’s *fiction*. In that 1980s world, bad guys are pure evil and it’s okay to murder them; there will be no consequences.

        Not a great proxy for reality.

        1. 1: It *isn’t* OK to murder them. It’d be a much shorter movie if it was.

          2: With the exception of the perp whose throat was cut, ALL of the killings were clear self defense, either of self or a 3rd party. The ending of the movie is the latter — the perp has a handgun pointed at the hero, and they shoot him to prevent him from shooting. And as to the cut throat, arguably he was no longer a lethal threat once he kicked the gun out of his hand, but he still was a clear threat.

          3: There WERE consequences — men care what women (whom they respect) think about them.

    1. So in an ideal world being impolite would carry legal sanction?

      1. SOCIAL sanctions, which it once did.

        1. It still does.

          But you mention law enforcement so you weren’t just talking about social. Back then.

  10. Drop back ten years and have the same comments sent to President Obama, and see what the response would have been.

    1. A new counterfactual contender has entered!

    2. You mean like in the main precedent cited in the decision?

      1. The bar for the Secret Service checking to see what a speaker’s intentions are is understandably lower than the bar for a criminal prosecution. (As the WTHR story notes, “The man told Eyewitness News that Secret Service agents paid him a visit, but they agreed he was within his First Amendment rights and did not pose an actual threat to the president.”)

  11. The subject here is weaponized speech—a novel phenomenon made possible only recently, by the introduction of cost-free, liability-free, unedited, world-wide publishing for everyone. Legal commenters here, showing rigidity verging on intransigence, insist on seeing the subject otherwise, as nothing more than a routine speech freedom case, properly governed by legal standards laid down pre-internet.

    Because those outmoded standards will not successfully govern this new phenomenon, the standards are destined to change. It will be interesting to see how long it takes such self-confident and powerful experts to notice they are out of step with reality, and instead take note that the facts have changed so much that their minds must change also.

    1. How, in your view, was this situation “made possible only recently, by the introduction of cost-free, liability-free, unedited, world-wide publishing for everyone”?

      1. If I were to venture a guess, he figures that the “weaponizing” relies on what you might term a “high rate of fire”; That a politician might laugh off the occasional threat, but be worn down by getting them every darned day.

        Clearly, the factors he cites are relevant:

        1) Cost free enables large quantities of such messages, because, duh, they don’t cost anything to produce and send.
        2) Liability free enables large quantities, because the number of senders isn’t reduced by concerns about retaliation.
        3) Unedited? No third party is intercepting the missives.
        4) World wide? A larger pool of possible senders.

        To which I’d add that there may be some background organization; There are already lists for downvoting, where the interested can check in, obtain 10 or 20 posts the source has designated for such actions, and then go off and downvote the comments or posts before breakfast, without having to have found them on their own or actually read them, and go about their day thinking they’ve done something good.

        Are there target lists for just short of true threats, complete with writing guidelines to help you stay right up to the line, but on the right side? If there aren’t now, I bet there will be soon.

        1. I’m not following.

          I realize that Stephen Lathrop thinks it’s very unfair that you can’t sue Facebook when someone posts something mean there, and wishes they’d hire out of work newspapers editors to class up the joint. But the communications in this case were all emails sent directly to McConnell’s office. No one is upvoting or downvoting them; no one is seeing them at all except the sender and the recipient. It’s nothing that couldn’t have been done 50 years ago with a couple of stamps.

          1. On top of that, I am sure there is someone in the office screening the emails. I strongly doubt Mitch comes in early every morning to catch up on last night’s emails from the general public.

          2. “It’s nothing that couldn’t have been done 50 years ago with a couple of stamps.”

            Not only that, but to address the cost issue, the monthly internet bill would buy a lot of stamps.

            As far as anonymity, dropping an envelope in the mail 50 years ago would be a lot harder to trace back to the sender than email today.

  12. I am surprised nobody noticed the lede-burying here. This was obviously just a way for Prof V to drop the N-word, misspelled or not.

    Now the Rev can restart his clock.

  13. I’m going to be lenient:

    THE VOLOKH CONSPIRACY
    This blog has operated for
    19 DAYS
    without using a vile racial slur
    and for
    460 DAYS
    without viewpoint-based censorship

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