The Volokh Conspiracy

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Threatening Political Condemnation for Political Opposition Isn't Criminal Coercion


In People v. Cannata, decided a year ago but just posted on Westlaw, defendant was being prosecuted for violating New York's third-degree coercion law, which in relevant part reads,

A person is guilty of coercion in the third degree when he or she compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, …

by means of instilling in him or her a fear that, if the demand is not complied with, the actor or another will [among other things, such as causing physical injury,]

[5.] Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule;  or …

[9.] Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his or her health, safety, business, calling, career, financial condition, reputation or personal relationships.

New York City Court judge Nichelle Johnson threw out the charge:

The accusatory instrument alleges that on or about April 9, 2021 the defendant engaged in a telephone conversation with [Janice Duarte] during which defendant attempted to "broker" a political deal which is commonplace in politics. The Defendant stated in sum and substance that there were consequences for [Duarte's] brother's objection to defendant's petition to be on the Mount Vernon City Council ballot; that he took the objections personally; that if Ms. Duarte did not withdraw the petition objection it would be his singular focus between then and June 22nd to work against her individually and that he would do everything he could to tell every democrat they should not vote for her; that he would be ruthless and would send out weekly emails blasting her every chance he got; if he was off the ballot he would be attacking her personally by attacking what she had done on the council specifically mentioning her name; and he also stated that if his demand was not met he would bring a lawsuit against Duarte pursuant to the Mount Vernon City Charter, for waste.

He went on to state that he spent a lot of time and money and wanted to stay in the race for City Council and if she would withdraw the objections that would allow him to stay in the race in exchange, he would refrain from attacking her personally as to her political record as a city council person—a right he had but would not engage in if she agreed to withdraw. [Duarte] stated that others had challenged his signatures and the defendant informed her that the other party that had also objected to his petition had withdrawn his objections.

The accusatory instrument further alleges that on or about April 9, 2021 the defendant sent [Duarte] a sample of the email he referenced in the phone conversation. In the email the defendant informed the recipients that [Duarte] had attempted to get him thrown off the ballot instead of facing off with him in the race. He then went on to specify actions taken by the city council which included specifically mentioning [Duarte] by name and accusing her of waste and inaction. In addition, on or about April 11, 2021 the defendant sent [Duarte] a text message that stated the first political letter "will go out at 4:00 pm tomorrow if the objection is not withdrawn". On or about April 12, 2021 the defendant sent a mass email identical to the one forwarded to [Duarte] to registered democrats in the City of Mount Vernon. Again, a right he had as a candidate and citizen engaged in the political process.

While these allegations provide reasonable cause to believe that the defendant tried to compel or induce the complainant to engage in conduct which the complainant had a legal right to engage in by instilling in her a fear that, if the demand was not complied with that defendant would subject her to ruthless political and personal political attack they failed to provide reasonable cause to believe that the fear was that the defendant would 1) expose a secret or publicize an asserted fact, whether true or false, that would subject her to hatred contempt or ridicule; and 2) perform an act that would not, in itself, materially benefit defendant, but was calculated to harm complainant with respect to her health, safety, business, calling, career, financial condition, reputation or personal relationships. As a result, the accusatory is facially insufficient….

[T]he threat of exposing political misfeasance or malfeasance is protected political speech and is not the type of speech the crimes herein were targeting when it indicated hatred, contempt, or ridicule. This court agrees with the defense that while the political targeting of [Duarte] may expose her to political backlash from the public at large such is not the type of speech anticipated to be criminalized under this criminal statue. The prosecution in trying to posit that the speech was not all political by arguing that the Defendants use of the words "ruthless" and "personally" were words referencing something other than political speech, this court can only opine that this tenuous argument is being made because if the speech is only political the prosecution understands that they will have problems with the life of their dubious accusatory. However, a review of their own accusatory, and a complete review[—]one that follows the federal rule of completeness[—]establishes the fact that the defendant's threat was to expose only political issues regarding [Duarte]….

While the prosecution argued that it was the Defendant's action not his speech that they have a problem with—his threat to harm—the crime requires not just a threat but that it subject the person to hatred ridicule or contempt and if the speech is political, and this court finds that it was, then this court opines as the Defense asserts that there is no way the legislature meant for this political speech where opposing candidates subject each other to exactly what the statue criminalizes political hatred, ridicule and contempt. That is exactly what candidates for office attempt to do to each other….

With respect to [coercion under subsection 9], the Court finds that the threatened conduct as alleged would materially benefit the defendant. The defendant threatened that he would personally attack [Duarte] and would be ruthless in sending weekly emails to voters harshly criticizing her. Defendant then did, in fact, send an email that specifically targeted Ms. Duarte and her actions as a Mount Vernon City council member. This court finds that defendants conduct of attacking the complaining witness' political actions as a council member would enhance defendant's political candidacy to secure a coveted office of significance in the City of Mount Vernon…. The securing of a political office within a city especially wherein one gets elected by the residence of that City, brings much notoriety and prestige. Indeed, if the Defendant was successful in his political race, he would earn the title of "Honorable" and would be paid for his services as well….

Therefore, when considered, Defendants constitutional rights would be infringed if the allegations in the information establish that the attack towards Ms. Duarte from a political perspective intended to subject her to "hatred, contempt, or ridicule" as prescribed by the statute….