The Volokh Conspiracy
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Telling Officials "You Will Live to Regret This" Wasn't Punishable Threat or "Intimidat[ion]"
when in context the statement just expressed "an intention to file a complaint against the conduct of government officials."
From Coffeeshop, LLC v. Alcoholic Beverages Control Comm'n, decided Monday by the Appeals Court of Massachusetts (Justices William Meade, Sabita Singh & Paul Hart Smyth):
At 7:10 P.M. on Saturday, September 29, 2018, members of the Cambridge police and fire departments arrived at the plaintiff's business for an enforcement matter regarding its use of candles. After observing five to ten lighted votive candles in glass on the bar and tables, the officials spoke with Courtney and Dietrich [then-owners of Coffeeshop, a wine bar], who each recorded most of the interaction.
The officials instructed Courtney and Dietrich to extinguish the candles. Courtney refused and demanded that the men show her the text of the laws that the plaintiff's use of candles violated. The officials attempted to read aloud a law purportedly governing the use of the candles; Courtney interrupted them and said that the law in question was inapplicable, which as discussed below is correct.
As the conversation continued, the group moved outside. One of the officials then called a supervisor, who arrived at the premises at 7:35 P.M. While Courtney spoke to two of the officials, the other officials returned inside the premises to shut down the establishment. Once an official asked an employee to turn the music off, Courtney relented and extinguished the candles "under protest." After she extinguished the candles, Courtney asked the officials for their business cards or identification. As they were leaving, at approximately 7:53 P.M., Courtney stated "you will live to regret this."
On October 12, 2018, the Cambridge Licensing Commission (board) issued a notice of disciplinary hearing regarding the incident, charging the plaintiff with (1) a fire safety violation, (2) hindering an investigation, (3) intimidating a witness and (4) threatening a public official. The board found the plaintiff in violation of all the charges against it and ultimately imposed a five-day suspension. The plaintiff appealed.
After a hearing that spanned six days, featured testimony from nine witnesses, and included a total of seventy-five exhibits, the ABCC reversed the finding of a violation on the first charge. It ruled that the board had charged and violated the plaintiff for "a section of law pertaining to the use of candles with portable cooking equipment," and it was "undisputed the candles at the [plaintiff's] establishment were not used for portable cooking equipment." Accordingly, such a violation could not stand. However, the ABCC affirmed the board's findings as to the violations of interfering with an investigation or enforcement of the law, intimidation of a witness, and threatening an official, ultimately upholding a three-day suspension as related to those violations. A judge of the Superior Court affirmed….
The hindering charge was premised on the owners' discussion with the officials concerning the validity of the enforcement action. The ABCC found that the substantial evidence supported the assertion that Courtney specifically hindered an "authorized agent of [the] local licensing authorities in the performance of his duties," in violation of G. L. c. 138, § 63A, and a corresponding local board rule. The ABCC noted that the officials were "undoubtedly hindered and delayed [in their] investigation … into the use of candles" for at least thirty-five minutes as Courtney and Dietrich "argued" with them….
[But a]lthough the owners of the establishment challenged the officials' basis for the enforcement order, there is no evidence that they impeded any official's entry into the business or denied them requested information. In fact, during the exchange, the officials were not seeking any "information as may be required for the proper enforcement of" G. L. c. 138, § 63A; to the contrary, the owners were seeking information from the officials relating to the law that they claimed to be enforcing. The charge of hindering cannot be sustained….
The charges of intimidation and threats were premised on Courtney's statement to the officials, "you will live to regret this." {On the video, Courtney states, "[Y]ou guys are gonna regret behaving this way; this is not how this works." Nevertheless, the ABCC credited the officials' testimony that Courtney said, "you will live to regret this," even though not found in any recording, because "[t]here is nothing to indicate that every word spoken was captured by the recordings." We note, however, that nothing in the record indicates that witnesses heard Courtney express such a sentiment more than once and that the video recording conforms with the witness testimony as to the time when the officials heard Courtney make the statement.}
The ABCC found that this constituted intimidation in the sense that it implied that Courtney would make a complaint against the officials, which in turn would cause them economic injury because it would jeopardize their professional careers. Likewise, the ABCC found that the statement also constituted a threat to commit a crime, specifically witness intimidation, in the sense that it implied that Courtney would retaliate against the officials for their enforcement action by filing a complaint, thereby causing them economic injury by jeopardizing their careers. The ABCC further noted that Courtney "followed through with her threat of retaliation against their employment by filing a complaint against them in part arising out of their investigation … , which only gives credence to the fact she intended her statement to mean that she … [planned] to retaliate."
There is no dispute that Courtney's statement was taken as nothing other than an intention to file a complaint against the conduct of government officials. No matter how aggressive the tone, the statement does not constitute a "true threat" which may deprive it of First Amendment protection. An individual's right to complain against its government cannot be denied under a theory that the lawful complaint somehow threatens or intimidates a government official; the statement at issue here is a classic example of protected speech. The charges of intimidation and threats cannot be sustained….
