The Volokh Conspiracy
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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.