The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last year, I wrote about the prosecution of Howard Weiss for sending eight e-mails to Senator Mitch McConnell, and Judge Charles Breyer's conclusion that the e-mails didn't fall within the "true threats" exception to the First Amendment. (I also noted that Judge Breyer rejected the government's claim that the messages could be punished as "speech integral to criminal conduct.") The government appealed as to the first of the e-mails, sent October 2, 2018, claiming it was a true threat:
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!!!!!!
And in today's U.S. v. Weiss, Judges Richard Paez, Paul Watford, and Michelle Friedland concluded that this particular e-mail is indeed potentially a "true threat" (see also this S.F. Chronicle article by Bob Egelko):
The district court erred in dismissing the indictment. It is "not clear" enough whether Weiss's October 2, 2018 message was a true threat to be resolvable "as a matter of law." Therefore, it is "appropriate to submit the issue, in the first instance, to [a] jury."
Because section 223(a)(1)(C) criminalizes speech, it "must be interpreted with the commands of the First Amendment clearly in mind." The First Amendment, however, does not protect "true threat[s]." True threats have both an objective and subjective element. To meet the objective prong, the court asks "whether a reasonable person would foresee that [his] statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." To meet the subjective prong, the court asks whether the speaker "mean[t] to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual." If it is "not clear" whether a statement is "protected expression or [a] true threat," it is generally "appropriate to submit the issue, in the first instance, to [a] jury."
A reasonable jury could find that a "reasonable person" in Weiss's position would "foresee that [his October 2, 2018] statement would be interpreted by" the statement's recipient "as a serious expression of intent to harm or assault." While several aspects of Weiss's message appear politically motivated and reference a third party, the "Resistance," as carrying out the threatened violence against Senator McConnell, there are several factors on which a trier of fact could rely to find that Weiss's statement was a true threat. Although Weiss "did not explicitly indicate that he was going to kill" Senator McConnell, he associated the sender of the message with the "Resistance" through the email address he provided [email@example.com]. Weiss's message was likely to engender a "fear of violence" by describing when and how the threat would be carried out.
And Weiss's message was "privately communicated" to and "personally targeted" at Senator McConnell, rather than "publicly distributed" or addressed to a broader audience. See Planned Parenthood v. Am. Coalition of Life Activists (9th Cir. 2002) (observing that "a privately communicated threat is generally more likely to be taken seriously than a diffuse public one"). Weiss's message was perceived as a threat by listeners, as demonstrated by Senator McConnell's staff reporting the statement to law enforcement as a "threat." Although Weiss's threatening statements in the October 2, 2018 message are conditional, we have recognized that conditional language is not "dispositive" in finding that speech is not a true threat, as "[m]ost" unprotected threats are conditional.
In light of the above, a rational jury could find that a "reasonable person" in Weiss's position would "foresee that [his] statement would be interpreted by" the statement's recipient "as a serious expression of intent to harm or assault."
Similarly, a reasonable jury could find that Weiss "mean[t] to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual." [The Ninth Circuit requires such a showing of purpose to threaten, see U.S. v. Bagdasarian (9th Cir. 2011). -EV] While Weiss stated that he only intended to "harass" Senator McConnell, Weiss also stated that he wanted his statements to "affect" Senator McConnell. Law enforcement repeatedly warned Weiss that his messages could be viewed as threatening but Weiss continued to send potentially threatening messages anyway.
Given these facts, a reasonable jury could find that Weiss subjectively intended to communicate a true threat. Further, whether Weiss only intended to harass Senator McConnell is a factual issue that may turn on the jury's credibility findings. These circumstances demonstrate that a reasonable jury could find that Weiss subjectively intended to threaten Senator McConnell.
In sum, a reasonable jury could find that Weiss's October 2, 2018 message was a true threat and not entitled to First Amendment protection. Therefore, we reverse the district court's dismissal of the indictment and remand for further proceedings.
Here, by the way, are the Internet posts that the Ninth Circuit found not to be threatening in Bagdasarian:
[1.] Re: Obama fk the niggar, he will have a 50 cal in the head soon.
[2.] shoot the nig country fkd for another 4 years +, what nig has done ANYTHING right???? long term???? never in history, except sambos.
The key distinctions that the Weiss panel drew, I think, were that (1) Weiss's messages were sent directly to McConnell's office, rather than just being posted onto an online discussion board ("Yahoo! Finance—American International Group," of all places), and that (2) the reference to "resistance" in the e-mail address Weiss provided, coupled with "the resistance is coming to DC to slash your throat," is a more direct assertion that this is a threat of what Weiss or his associates would do and not just a prediction of what someone would do.
Because the government gave up on e-mails two through eight, the panel had no occasion to mention Weiss's peculiar views on race and racism: Some of Weiss's e-mails called McConnell—whose wife, then-Transportation-Secretary Elaine Chao, immigrated from Taiwan—a "racist fucking criminal chinc loving motherfucker" and said, "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."