The Volokh Conspiracy
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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."