Free Speech

Prosecution for Threatening ACLU Employees May Go Forward


From United States v. Carrillo, decided Wednesday by Judge Kea W. Riggs (D.N.M.):

The indictment provides: "On or about June 19, 2019, in Valencia County, in the District of New Mexico, the defendant, ANTONIO CARRILLO, knowingly and willfully did transmit in interstate commerce via Facebook, and interstate social media company, a communication, specifically a social media post, to the American Civil Liberties Union, and the communication contained a threat to injure American Civil Liberties Union Personnel."

The alleged threat was posted as a comment on a Facebook threat, and reads as follows: "You Bitches Want a Physical Civil War.. I'm Game..I'll bring My Farm Implements and They will Never find your Bodies..AND for Fun I'll BURN Every ACLU Office in the State.. GO TRUMP GO.!"

Defendant also allegedly made the following post on Twitter publicly directed to @realDonaldTrump: "@realDonaldTrump, YOU Say YOU are going to DEPORT Thousands.. People are Saying,; I'LL believe it when I see it..Personally When Civil War Starts.. I'm Going to Burn Down EVERY ACLU Office in New Mexico."

The indictment charges Defendant for the Facebook post, but not the Twitter post….

Section 875(c) [of Title 18 of the U.S. Code] prohibits certain threats to injure in interstate commerce. Because the First Amendment rights may potentially be at issue, the United States Supreme Court has added an additional element to the statute: the threat must be a true threat. A true threat is a statement "where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." "[T]he government must prove the defendant transmitted the communication for the purpose of issuing a threat or with knowledge the communication would be viewed as a threat." Although the Defendant must intend that the recipient feel threatened, the Defendant need not intend to carry out the threat.

The Court finds that the indictment sufficiently apprises Defendant that he is charged with making a true threat….

Defendant argues that his Facebook post is protected by the First Amendment and was mere hyperbolic political speech.

True threats are not protected by the First Amendment. Generally, at this stage, the Court inquires whether a reasonable jury could conclude that Defendant issued a true threat. "[I]f there is no question that a defendant's speech is protected by the First Amendment, the court may dismiss the charge as a matter of law." … "If the court determines a reasonable jury could find that the [] communication[s] constitute[] … true threat[s], then it may deny the defendant's motion to dismiss." … A court may dismiss the charges against a defendant "[i]f there is no question that a defendant's speech is protected by the First Amendment."

Here, a reasonable jury could conclude that Defendant communicated a true threat. Defendant stated: "You Bitches Want a Physical Civil War.. I'm Game..I'll bring My Farm Implements and They will Never find your Bodies..AND for Fun I'll BURN Every ACLU Office in the State.. GO TRUMP GO.!" Specifically, a reasonable jury could conclude that Defendant intended ACLU personnel to feel threatened, or he knew that by posting the comment ACLU personnel would view it as a threat of injury.

Defendant argues that his comment was mere political speech. Defendant's message contained political speech, including reference to apparent political discourse regarding a "civil war", and ending his message with "GO TRUMP GO." However, that political speech does not shield Defendant from culpability from the true threats otherwise contained in his message. Therefore, the Court cannot say that there is "no question" that Defendant's comment is protected by the First Amendment.

Defendant argues that he only posted the message on Facebook and did not specifically send the message to ACLU personnel. While Defendant posted his message on Facebook, he specifically targeted ACLU personnel in New Mexico. Under these circumstances, a "rational juror, considering the language and context of these posts could consider them to be true threats because they directed specific, deadly action against a number of individuals."

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  1. Prof. Volokh, you didn’t put your take on this case.

    I’m assuming you think (and I would agree) that this case should be thrown out because the speech does not meet the imminent lawless action threshold.

    1. It would seem that the free speech exception at issue here is the true threat exception, not the incitement to imminent lawless action exception.

      1. Except that this sounds like the rantings of a blowhard., thus no true threat.
        Should be a simple matter to determine frequency of similar rants against aclu, and the actual frequency of blown up aclu offices(currently zero) and empirically determine this to be hyperbolic rant, not threat.

  2. Well, I read it as a political statement that IF the physical war the ACLU wants does break out; the defendant would be on the other side, and his side would be victorious.

    1. It does seem to fail to meet the imminent action threshold, unless you think we’re in a civil war right now.

      1. The imminent requirement applies to criminalizing incitement, not threats.

      2. We certainly are in a civil war now.

        1. And you are in the vanguard of the Keyboard Kommandoes.

          So brave!!

    2. As did I. It seemed obvious to me, but I suppose you need to be familiar with certain patterns of language.

      The denial of the motion to dismiss … I’d love to see a little more depth analysis by the judge. Her standard of “… a reasonable jury could conclude that Defendant intended ACLU personnel to feel threatened …” doesn’t seem like enough me, and the parsing out of other parts of the blurb (e.g. GO TRUMP GO!”) also seems incorrect, as it forms part of the context needed to evaluate the supposed true threat. In fact, it seem almost as if the “You want a civil war” has been removed from the analysis as well.

      I can think of much obviously protected speech that this standard would allow to go to trial.

      1. Arrgh! That should be “…in-depth analysis…” and “…enough to me…”

  3. I’m surprised that the defendant didn’t argue the conditional nature of the threat. Or in the alternative, I’m surprised that the judge didn’t address that argument in the opinion.

    1. The fact that the twitter post was conditional is probably a big part of the reason why he wasn’t charged for it in the indictment. He was charged only for the Facebook post, which was not conditional.

      1. I’m not saying that the Facebook post was clearly conditional. But I think it could be argued that it was conditional. I think a reasonable person could take the opening sentence to mean… ‘if you bitches want a physical civil war.. I’m game..”

        That’s consistent with how people often speak. Questions or conditions aren’t always indicated by, e.g., the inclusion of an if at the beginning. People, at least people I know, will often say something like ‘you want my help, I’m there’ meaning something like ‘if you want my help, I’ll be there.”

        1. That’s how I read it too, as a conditional “if you engage in (specified unlawful action) then I’m going to (True Threat, or maybe hyperbole).”

          The question then becomes, is a true threat of a lawful action itself unlawful? Here I’m postulating (and you may disagree, but it’s a slightly different question then) that acting as the militia in defense of the Union against insurrectionists a la the Whiskey Rebellion is a lawful act, as that’s the predicate and threat when taken in context.

          To put it another way, is it an unlawful true threat if you put a sign by your back door, skylights, etc, that reads, “Burglars are hostum humani generis and will be treated that way at 1,200 FPS?” It’s a true threat to commit a lawful act – shooting a burglar, but is it prohibitable?

          Morally I think the answer has to be No, or literally every cop whose ever said, “put the gun down or I’ll shoot” (which I think we all prefer over them shooting first) should be prosecuted for making a true threat.

          At the same time, if the state can show that this wasn’t a conditional threat in response to an unlawful action (insurrection via civil war), such as perhaps by showing plans to carry out the described acts without the predicate, then they’ve demonstrated that it wasn’t a protected predicated act, but rather a direct true threat (and they could potentially prosecute for the early stages if committing the threatened acts too, depending instate law).

          So I find the judges answer right, but not sufficient: the state must prove that this is not a conditional threat beyond the already necessary proof that it was intended to threaten harm – and that question is a mixed question of law and fact for the judge rather than the jury alone.

          1. But to say “it could be argued that it was conditional” is also to say that it could be argued that it wasn’t conditional — that is, that a reasonable jury could find that it wasn’t conditional. The judge’s job at this stage is whether it’s so obvious that it’s not a true threat that it can’t be argued. To make statements like “it could be argued” and “my reading is” is to admit the matter is arguable and other readings are possible.

            1. I think that’s fair enough. I occasionally make conditional threats, but I always make the conditional crystal clear. If you’re going to be making threats, you’ve got to be careful how you word them.

  4. Sorry, this guy crossed the line from hyperbole to threat. The lawyers here can address how far over the line this guy went….but he went over the damned line and should be held to account for that. I am not buying the conditionality argument at all.

    James Hodgkinson made numerous threats that were considered hyperbole. In today’s environment, can you really be sure of the distinction between hyperbole and threat?

    1. I don’t think the decision requires taking into account today’s environment. Of course those working at the ACLU would rationally feel threatened, as would just about any professor with a student on FB threatening to go all Virginia Tech on the law school if his demands are not met immediately.

  5. You know, if we just stopped giving allowance for threats as long as they aren’t “true” enough, and started treating all threats as true, we might not have as many people making untrue threats.

    1. Yes, obviously. And if we didn’t allow truth as a defense to a defamation claim, and started treating all negative claims as defamation, we’d have fewer people saying truthful but negative things. But we don’t want to punish people for saying truthful but negative things.

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