The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An interesting, and I think correct, Fifth Circuit First Amendment decision in Seals v. McBee, written by Judge Smith and joined by Judge Weiner and newly appointed Judge Willett:
Louisiana Revised Statutes § 14:122 criminalizes "the use of violence, force, or threats" on any public officer or employee with the intent to influence the officer's conduct in relation to his position. Travis Seals threatened police when arrested[.] [Text moved: It appears that a neighbor accused Seals and Bergeron of aggravated assault, and the police responded. According to Seals, he was pepper-sprayed and verbally objected to the arrest, threatening "to make lawful complaints" about the officers' conduct. According to the officers, Seals violently resisted and "repeatedly made threats of physical harm."]
[Seals] facially challenges Section 14:122 as unconstitutionally overbroad in violation of the First Amendment. To show [the statute is unconstitutionally overbroad], plaintiffs must establish that Section 14:122 encompasses a substantial number of unconstitutional applications "judged in relation to the statute's plainly legitimate sweep." …
The parties dispute the reach of Section 14:122. We start with the text. The statute criminalizes "public intimidation," defined as "the use of violence, force, or threats upon [a specified list of persons, including any public officer or public employee] with the intent to influence his conduct in relation to his position, employment, or duty." On its face, the statute is extremely broad. The definition of "threat" generally encompasses any "statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done" [citing the dictionary definition]. That definition easily covers threats to call your lawyer if the police unlawfully search your house or to complain to a DMV manager if your paperwork is processed wrongly….
Although not explicit, Louisiana caselaw strongly suggests that Section 14:122 requires a corrupt intent, [defined as the intent to obtain something the speaker is not entitled to as a matter of right]…. Yet we can narrow Section 14:122 no further. According to the state, we should construe the statute to apply only to true threats, i.e. "a serious expression of an intent to commit an act of unlawful violence" toward specific persons. [But, f]irst, the definition of "threat" is broader than true threats: any "statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done." Second, the reporter's comments to Section 14:122 provide that the statute "should include threats of harm or injury to the character of the person threatened as well as actual or threatened physical violence." Thus, the section is not "readily susceptible" to such a limiting construction….
[Moreover,] the Louisiana Court of Appeals has upheld the conviction of a defendant who violated Section 14:122 by threatening "to sue" an officer and "get [his] job" if the officer arrested him. Plainly, such a threat suggests no violence—indeed, the threat appears to be a plan to take perfectly lawful actions. Accordingly, we cannot construe Section 14:122 to apply only to true threats of violence.
It follows that, properly understood, Section 14:122 applies to any threat meant to influence a public official or employee, in the course of his duties, to obtain something the speaker is not entitled to as a matter of right. But so construed, the statute reaches both true threats—such as "don't arrest me or I'll hit you"—and threats to take wholly lawful actions—such as "don't arrest me or I'll sue you." In both those examples, the speaker may be legally subject to arrest and is trying to influence a police officer in the course of his duties….
[Thus, though the statute] covers a large swath of unprotected speech, including true threats and core criminal speech, such as extortion and threats to engage in truly defamatory speech made with actual malice[,] … the statute plainly reaches further[, such as to] … threats to sue an arresting officer or even to run against an incumbent unless he votes for a favored bill.
Such threats are constitutionally protected. The decision in NAACP v. Claiborne Hardware Co. (1982), is instructive. There, a group of black citizens demanded that public officials desegregate public schools and hire black policeman lest the black community engage in boycotts of private businesses; when their demands were not met, the boycotts began. Such speech was constitutionally protected even though obviously threatening. Moreover, a speech during the boycott contained strong language referencing breaking necks and committing other acts of violence; nevertheless, the Court found the speech protected. Yet on its face, Section 14:122 would criminalize all of that speech…. Section 14:122 could encompass an innocuous threat to complain to a DMV manager for slow service or a serious threat to organize lawsuits and demonstrations unless the police lower their weapons. And each kind of threat is constitutionally protected….