E-Mail to Sen. McConnell Could Be Found to Be Criminally Threatening

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 [[e-mail]]. 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."

Comments

[Jerry B.]

“Judge Charles Breyer”

An Obama appointment who apparently doesn’t believe a threat to slice one’s throat is a true threat, especially when the person threatened isn’t a Democrat, and therefore not really a person at all.

[David Nieporent]

I know that your point was just stupid partisan hackery and therefore not really worth engaging with, but for the sake of the historical record: the one fact you asserted in your comment was wrong. He’s not an Obama appointment.

[Michael D]

To be fair, Obama did appoint him to the US Sentencing Commission but he was a Clinton appointee to the bench.

[DaivdBehar]

Hi, David. Your comment is stupid, pointless nitpicking by a scumbag lawyer Democrat. It commits the Fallacy of Irrelevance.

Don’t you agree the massive violation of Critical Thinking principles by the toxic, scumbag lawyer occupation is a massive violation of the Procedural Due Process Clause? These violations are everywhere in the Rules of Evidence, of Criminal Procedure, of Civil Procedure, of Conduct. Critical thinking should be supreme over scumbag lawyer made up shit. The utter stupidity of the lawyer profession is a major factor in the utter failure of every self stated goal of every law subject. Like take a night high school course in Critical Thinking, you vile, dumbass, scumbag Supreme Court Justices.

[AmosArch]

The System = a bunch of maga hat wearing rednecks
The plucky RESISTANCE = Mainstream Media/Sillycon Valley/Holyweird/Corporate America/More than half of Government/Academia

[DaivdBehar]

We are sick of these failed elites. Arrest them. Seize their assets in civil forfeiture. Replace them.

[Jimmy the Dane]

AK who regularly celebrates the fact that Americans he does not like are going to be “replaced” might get behind this sentiment…

[bernard11]

I think death threats, especially those communicated in writing, should really be presumed to be “true threats” unless there is very convincing evidence to the contrary.

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.”

These both sound pretty subjective to me.

[Stephen Lathrop]

Agree with that, bernard. Also disagree that a threat sent privately ought to be more subject to punishment than one published. Folks well understand that there are thousands of crazy people reading the internet, with only sketchy reins on their suggestibility. Death threats against someone’s children, published on the internet, are rightly understood as an attempt by the publisher to mobilize crazy assassination attempts against the target, or against the target’s family. That ought to be investigated and punished as terrorism.

[David Nieporent]

Also disagree that a threat sent privately ought to be more subject to punishment than one published.

When one contacts someone personally and says, “I am going to kill you,” that’s a lot more likely to be sincere, intended to scare, than when someone publicly vents about killing a person.

Folks well understand that there are thousands of crazy people reading the internet, with only sketchy reins on their suggestibility. Death threats against someone’s children, published on the internet, are rightly understood as an attempt by the publisher to mobilize crazy assassination attempts against the target, or against the target’s family.

First, calling them “death threats” begs the question. Second, nobody understands them that way. Could you show us on the doll where the Internet touched you?

[Stephen Lathrop]

Wait a minute, Nieporent. You are saying that when Trump complains in public that some Republican Secretary of State has been disloyal, and demands that his backers ought to let the guy know how much they disapprove, and then the Secretary of State begins to see online posts threatening to kill his children, nobody understands those as death threats? Tell me, what purpose does 1A protection serve for that kind of thing (speech, conduct, you decide)? Do you think for a moment that if that remains legal, there will be anyone except Trump partisans left to administer elections?

[I Callahan]

And in all of that, can you please show me where Trump is en suggested, let alone said, to kill someone? Didn’t think so.

[Stephen Lathrop]

I Callahan, I did not intend to suggest that Trump be prosecuted. Just the person who makes the actual death threats. Not that anyone is in the dark about the Trump connection, of course.

[David Nieporent]

Example #4,195,728 of Lathrop arguing against speech.

Tell me, what purpose does 1A protection serve for that kind of thing (speech, conduct, you decide)?

You mean, like when (e.g.) the Sierra Club advocates that you let your congressperson know how upset you are about his support for oil companies? And then some rabid people will post violent comments about the congressperson and his family.

No, nobody thinks people venting online are serious. When people track you down personally and threaten you, then you have to worry.

[Stephen Lathrop]

Nieporent, people being threatened have repeatedly been interviewed. I have seen election officials say they have quit their jobs because of the threats. I have seen a Republican congresswoman describe the threats against her children, which were played on air. Those threats terrified me, for the future of the country. She was clearly terrified, for the future of her family.

In your view, Nieporent, does there ever come a time when evidence overcomes utterly arbitrary assertions about what people should believe? We are talking about violent terrorists who threatened to attack the Capitol, and then attacked it.

Stop changing the subject. What value worth protecting do death threats made against the children of election officials—or for that matter against someone who supports the Sierra Club—add to American constitutionalism? What value, Nieporent? Stop criticizing me, and say what it is you think you are defending.

[Noscitur a sociis]

True threats aren’t protected by the First Amendment, whether they’re directed at public officials or otherwise.

The problem is that you seem to be calling for criticism of public officials that inspires people to be angry at them to also be punished, even though that speech clearly is protected (and should be).

[Stephen Lathrop]

Noscitur, to be clear, I am calling only for people who actually threaten death or violence against specific targets to be punished. But I am advocating against any presumption that when such threats are published—as opposed to delivered privately—they lose their power to intimidate or inspire terror in their targets.

[David Nieporent]

What value worth protecting do death threats made against the children of election officials—or for that matter against someone who supports the Sierra Club—add to American constitutionalism? What value, Nieporent? Stop criticizing me, and say what it is you think you are defending.

Speech.¹

You. Are. Begging. The. Question. The issue is whether these things are threats (or, rather, true threats), not whether true threats are constitutionally protected. You, of course, with your censorious mindset, have taken it a step further, and have argued that not only are actual threats unprotected, but also non-threatening statements that may incite people to make threats that might or might not be true threats.

¹You seem to have a very early-20th century progressive view of free speech, in which its value is instrumental. For a given type or category of speech to be protected, it must be shown that this type or category of speech is in the public interest. We should do a cost-benefit analysis, and if it can’t be proven that its value outweighs the parade of horribles, we should exclude it from the first amendment. Fortunately, the courts do not approach their analysis that way.

[Stephen Lathrop]

You, of course, with your censorious mindset, have taken it a step further, and have argued that not only are actual threats unprotected, but also non-threatening statements that may incite people to make threats that might or might not be true threats.

That misunderstands what I advocate. Perhaps I was unclear. Noscitur above seems to have concluded likewise. See my response to him.

[Stephen Lathrop]

As for the notion that defending speech freedom requires defending published death threats against the family of an election official, it is beneath contempt. If as you insist there is considerable court support for that notion, that better change pretty quick, because it is a notable threat to American democracy to leave it alone.

[Noscitur a sociis]

What do you think “subjective” and “objective” mean here?

[bernard11]

I’m actually not sure what they mean here.

I more or less think they are not useful ways to describe the two prongs, or to distinguish between them.

In fact, thinking about it, what is described as “subjective” – the speaker’s intent – could be described as “objective.” It’s a specific known, at least to the speaker, fact, not a matter of perception or opinion.

[David Nieporent]

These both sound pretty subjective to me.

You’re mistaken.

Subjective asks what the specific speaker actually meant by those words.
Objective asks how a reasonable person would interpret those words.

[DaivdBehar]

Hi, David. Who is a reasonable person? Are you referring to a fictitious character?

The lawyer is not delusional. He is just making shit up brazenly.

[David Nieporent]

I can see why you would think that the concept of reasonable is fictitious.

[Sarcastr0]

To be fair, it took me a while in torts class to wrap my head around how subjective the objective tests really are.

[Artifex]

Subjective asks what the specific speaker actually meant by those words.
Subjective asks what the specific speaker actually meant by those words.
Objective asks how a reasonable person would interpret those words.

Which is actually quite interesting to a non-lawyer. Are “objective” and “subjective” uniformly redefined throughout the legal code or is this a special case of meaning mutation ?

Both cases are purely subjective from a logic standpoint.

[QuantumBoxCat]

Whether the standard is subjective or objective, it is applied by an individual judge, thus relying on the judge’s subjective view. If two judges apply an objective standard and reach different results, then the standard is inherently subjective (where the judge is the subject rather than the party in question).

[Stephen Lathrop]

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.

That is a little tricky to read. To meet the, “subjective prong,” what intent must the speaker have? Are we to read it that he must intend actual violence? Or are we to read it that he must intend to, “communicate a serious expression,” involving actual violence?

[Charles Nichols - CRTC]

A concealed carrier emailed me a death threat and copied it to an email distribution list wherein he said he was going to shoot me and called upon others on the list to track me down and shoot me as well.

These were just two of the twelve overt death threats in his email. Los Angeles County Deputy Sheriff Inge said they were not criminal threats because the concealed carrier did not use the word “kill.” That is an undisputed fact in my lawsuit against California’s Open Carry bans.

The Assistant District Attorney I spoke with said he sympathised with me but he also made the curious statement that his department does not prosecute unless the Sheriff’s department refers the case investigation to them for prosecution.

Then Attorney General Kamala Harris conceded the death threat was made but in her Answer to my lawsuit challenging California’s Loaded and Unloaded Open Carry bans she said she does not involve herself in local matters. Fun fact: I had reported the death threat to her office three months before I filed my lawsuit. The California AG has all of the powers of a District Attorney. She could have prosecuted but chose not to.

This is why it should once again be possible for a crime victim to bring private criminal prosecutions.

I will note that when I first told Professor Volokh about private criminal prosecutions from prior to World War II, he flatly denied that they took place. It amused me no end when he was privately prosecuted for a misdemeanor out of an eastern state, New Jersey as I recall.

Most arrests and prosecutions in the United States, prior to World War II, were made by private citizens, not government-employed police. A monopoly (in most states) in criminal prosecutions by the government is, like the virtual monopoly on policing, an invention of the 20th-century.

However, given that “The Conspiracy” has come out for eliminating juries in both civil and criminal prosecutions, it should not surprise anyone that it also opposes private criminal prosecutions.

[Michael D]

By “private criminal prosecution”, do you mean a process whereby individuals go before a judge or magistrate, complete an affidavit and seek a warrant for the arrest of the individual named in the warrant? Or, something else?

I would contend that this form of prosecution remains highly prevalent and is used quite often, at least in my city. I recall hearing or reading these individually obtained warrants by private prosecutors account for as much as half of all warrants obtained.

Back when I worked in law enforcement, it was my practice to require private prosecution when possible for many crimes, especially that of charging a person with theft for being in possession of a vehicle reported as stolen. If the vehicle owner declined to prosecute, I released the person after verifying their identity, reporting, etc.

Domestic violence was another area where we sought private prosecution but also had a legal duty to prosecute based on probable cause, even if there was only a misdemeanor.

[Charles Nichols - CRTC]

Michael D, it has been a decade since I last researched which states still allow private criminal prosecutions. To varying degrees, there were 10 states at the time and each state had its own procedures. As I recall, in Texas the judge had to approve the person one hired to prosecute the criminal case. In Tennessee, one had to choose between civil and criminal court because divorce lawyers were abusing the system, which is the nature of lawyers.

The procedure in California seemed to have sometimes required that one go before a grand jury to obtain an indictment and at other times to simply file charges and then hire a lawyer to prosecute his criminal case.

I suspect that if one were to conduct a poll, the overwhelming number of Americans would say that if they are a victim of a crime then they can “press charges” even though the reality is that in nearly all states today, the government has the first and last word on who will be prosecuted in criminal court.

There was a 1991 California Supreme Court opinion which basically said that crime victims have absolutely no say in criminal cases. The opinion basically said that under California law there is no such thing as crimes against an individual, there are only crimes against the state.

California had begun a piecemeal elimination of private prosecutions starting in the 1890s and there was some modern California court of appeals three-judge panel decision that quoted some 19th-century statute (1870s as I recall) to conclude that only the State can prosecute criminal cases apparently because of the way that criminal prosecutions are stylized (i.e., The People v. John Doe) despite contemporary newspaper accounts of private criminal prosecutions taking place in California at least into the 1920s.

There was even a Democrat who ran for some statewide office ca 1910 on a platform that included the elimination of private criminal prosecutions.

But all judges today were once lawyers. And lawyers are the most intellectually lazy and morally bereft type of people one is likely to encounter.

[santamonica811]

Late entry for ironic comment of the year. (I’m paraphrasing, natch):

“Hey Senator Mitch. You are a racist. And your wife is a chink whore gook. . . . Um, where was I? . . . Oh yeah; I was pointing out that you are a racist.”

[Titus PUllo]

Howard Weiss huh? Well, that does explain Breyers POV.

Damn lucky.

[Jimmy the Dane]

I thought violent rhetoric only came from the right???

[NOVA Lawyer]

You aren’t the only one who makes them, Jimmy. Sorry to burst your bubble.

[I Callahan]

Knee jerk comment. If you can show where a Jimmy ever made such a comment, I’m all ears. Your problem is just that you have thin skin.

[Sarcastr0]

LOL:

https://reason.com/volokh/2021/12/27/e-mail-to-sen-mcconnell-could-be-found-to-be-criminally-threatening/?comments=true#comment-9276832

[Jimmy the Dane]

LOL indeed.

First off thanks for taking the bait. Too predictable.

Second, do you think “do all the stuff and things” is even remotely an objective (or even subjective) threat let alone the equivalent to the threats made in the case discussed in this post?

[Sarcastr0]

You master of puppets, you.

Your post is ‘violent rhetoric’ as discussed in this comment thread.

No, it’s not a true threat, because you’re not a serious person.

[Jimmy the Dane]

This seems like an apt response:

Master of puppets, I’m pulling your strings
Twisting your mind and smashing your dreams
Blinded by me, you can’t see a thing
Just call my name ’cause I’ll hear you scream

[Nisiiko]

In a virtuous society, it would be legal to make threats to left wing politicians, as they’re obviously despicable vermin, and not really human.

[Jimmy the Dane]

This is why we need to get ready to do all the stuff and things when the time comes….

[Estragon]

Why be so coy?? Say more. What things? What kind of stuff? And to whom?!?

[Jimmy the Dane]

This post was mostly tongue and cheek to address Nova’s baseless claim above (fi that wasn’t obvious). I knew he would need some red meat and the libby commenters would jump all over something like this. Case proven.

[Estragon]

So clever. You win this round jimmy.

[benji]

The e-mail text matching the e-mail address argument is pretty embarrassing. I’m not shocked that a court would make such an argument to try and justify a decision but it’s still pretty bad.

[ImFeklhr]

Death threats seem to happen all the time to government officials and other public facing people. But how often are the threats carried out?
Is the rate of carried out threats per threat, higher or lower than the murder rate overal?
My guess is public figures who receive death threats are at a much lower risk of being murdered than huge segments of Americans who never receive threats and simply are living in poverty in violent cities.
Not sure that qualifying the actual risks should change the enforcement of laws governing threats, but shouldn’t it matter a bit if threats are basically never carried out? We should at least know the stats!

[John F. Carr]

Tough guys like to threaten cops, who then have to act scared on cue to sustain a conviction. Laws aside, I don’t believe any threat from me would be effective. As far as they know I’m not a crime boss or in a position to order a hit. There has been no epidemic of mysterious murders of police officers that I could claim credit for.

[Stephen Lathrop]

ImFeklhr, what is your guess on how often public officials give in under pressure from death threats against their children, and alter their advocacy, or quit their offices?

What would be the point of defending such threats, instead of prosecuting them?

What is your estimate of the likelihood that if such threats were prosecuted systematically, they would all but cease to happen?

[John F. Carr]

It seems like a close call. I would almost certainly vote to acquit. I would probably grant the motion to dismiss. I don’t feel sorry for the defendant having to go through the legal process.

I remember being accused of terrorism online for stating that car accidents were going to continue in some area despite the neighborhood’s misguided regulations, as if I were going to run down protesters personally.

[Commenter_XY]

This Weiss guy sounds like a real prize POS. But I am leery about where this decision leads us. Does this mean any and all intemperate remarks by pissed voters become ‘prosecutable’?

[Noscitur a sociis]

No, only the ones that could be plausibly understood to contain true threats.

[Commenter_XY]

Nas…..Plausibly understood is very much in the eye of the beholder, no? What is perfectly plausible to the 9th circuit could be completely outlandish to SCoTUS. Not that SCoTUS ever wrote (or noted) that a 9th circuit court decision was outlandish, mind you.

Personally, I think this guy Weiss crossed a line. Meaning, there is just some stuff you do not say to a sitting US Senator (of any party) and expect no kind of reaction. I have no love lost for the Senators of the People’s Republic of NJ, but if anyone ever sent emails like that to Senators Hernandez or Booker, I’d want law enforcement visiting them and making sure it was just some rando asshole spouting off and not something more serious.

Is law enforcement interviewing the author of an email like that to ascertain intentions…a violation of the author’s 1-A rights? I can easily see how a ‘motivated’ (or biased, if you will) LEO might read a negative intention where none exists.

[Stephen Lathrop]

Commenter_XY, isn’t there some ambiguity in the law, with regard to what a, “negative intention,” would be? You could read it as you apparently do, to mean the intention amounts to a plan to commit actual violence. Alternatively, you could read it to mean an intention to put someone in fear of actual violence targeted at them personally, for the purpose of influencing them—maybe to quit their job as an election supervisor, for instance.

If it were the second interpretation which applied, would you be in favor of prosecuting that conduct as a crime? If not, what is the argument against prosecution?

[Ed Grinberg]

re: last paragraph

I’ve long suspected that, for many “progressive” Antifa types, “racist” is merely a useful insult / putdown; they don’t hate Republicans / conservatives because they’re racist; they hate them for other reasons, but use the “racist” insult / putdown because it is convenient and effective. You can’t very well go around screaming “You fucking normal!!!” in people’s faces, so instead they scream “You fucking racist!!!”

[dunlop212]

I think it is a true threat. Interestingly, leftists seem to be the only ones to carry them out — James Hodgkinson, Renee Boucher, Sara Jane Moore, Squeaky Fromm, Lee Oswald — but I would feel the same way if it had been directed at Nancy Pelosi.

[Sarcastr0]

Those are some deep cuts of questionable leftism.

[UnitedBronx]

This is very dangerous. If your email has vulnerabilities, it can be hacked by well-wishers and used for blackmailing you. Because every one of us has a skeleton in a cupboard. So I decided to read https://www.auslogics.com/en/articles/fix-gmail-not-loading-in-chrome/ that I found last week and that helps to fix all compatibility issues between Gmail and Chrome. Just in case.