The United States Court of Appeals for the Ninth Circuit has handed down a significant ruling on the exception to the First Amendment for criminal threats. The court reversed the decision of District Court Judge Charles Breyer, who rejected the charges against Howard Weiss who threatened Senate Minority Leader Mitch McConnell.

Weiss sent eight anonymous e-mails to the office account of Senator Mitch McConnell in 2018 and 2019. The case involves a series of e-mails sent by Weiss that threatened McConnell, including such messages as this:

If you push this for Friday, the resistance is coming to DC to slash your throat. You will die in the street by DC resistance motherfucker!!!!! You will not live to regret it!!!!!!

He also sent such messages as “The yelling resistance should have put a bullet in your head and then kill all the people you love! …”

Weiss is all too familiar in our age of rage. Many of us have been subjected to such threats against ourselves and our family. Weiss is a coward who hides behind anonymity to threaten and bully those with whom he disagrees. While some of us continue to defend the right of anonymity as critical to free speech, Weiss uses the protection to spread hateful and violent views.

Nevertheless, people like Weiss are often the price for free speech. That is what Judge Breyer struggled with in United States v. Weiss when he concluded that the e-mails were protected speech. In reaching that conclusion, he found that they did not qualify under the “true threats” exception. Breyer noted that the exception requires that it “would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure” another person.

Judge Breyer compared the case to United States v. Bagdasarian, where the Ninth Circuit reversed a defendant’s conviction for threatening to kill then-presidential candidate Barack Obama. The defendant made statements like “Obama fk the [nig**r], he will have a 50 cal in the head soon.” Those were deemed not to be true threats because they did not include an “explicit or implicit threat on the part of [the defendant] that he himself will kill or injure Obama.”

In applying this standard to Weiss, the district court found that it is similar to Bagdasarian as falling outside of the category of “true threats”:

Weiss’s comments were also steeped in “rage and frustration,” and they were indisputably violent. Nonetheless, read in context, the statements predicted that other people would hurt Senator McConnell, not that Weiss would. See, e.g., Opp’n Ex. A1 (stating, “You will die in the street by DC resistance motherfucker!!!!!” but not identifying himself as being part of the “DC resistance”); Opp’n Ex. A5 (stating, “The Kentucky Resistance is going to hang you by your pussy lips and punish you,” but not identifying himself as being part of “The Kentucky Resistance”); Opp’n Ex. A7 (stating, “The Kentucky Resistance says they are going to cut your throat from ear to ear and then your gook wife’s,” and using the word “they”); Opp’n Ex. A8 (stating, “… the Kentucky Resistance is going to totally execute you. They have stated youare a deadman! And soon. We are so glad to hear that they are finally going to take action. We cannot wait to know you are dead,” and using the word “they”).  It is true that Senator McConnell’s staff considered some of these messages threatening. See, e.g., Opp’n Ex. A1 (“Please see below threats that came in through our online message system”). But just as the statement, “Obama fk the [ni**ar], he will have a 50 cal in the head soon” was not a true threat, see Bagdasarian, no reasonable jury could find that Weiss’s statements predicting that other people would harm Senator McConnell met the definition of true threats, see also New York ex rel. Spitzer v. Operation Rescue Nat’l, 273 F.3d 184, 196 (2d Cir. 2001) (“generally, a person who informs someone that he or she is in danger from a third party has not made a threat, even if the statement produces fear. This may be true even where a protestor tells the objects of protest that they are in danger and further indicates political support for the violent third parties.”)….

Judge Breyer also noted that the government’s indictment seemed to focus on an intent to harass rather than actually threaten Sen. McConnell:

 Here, though the government asserted at the motion hearing that Weiss’s conduct meets the subjective test for a true threat, it provided no support for that assertion. In fact, the government asserts repeatedly in its briefing that Weiss had the intent to harass Senator McConnell, but never mentions an intent to threaten. See, e.g., Opp’n at 1 (“Defendant Howard Weiss is charged with the harassing use of a telecommunications device … with intent to harass U.S. Senator Mitch McConnell.”); id. (“From October 2018 through October 2019, defendant used his cell phone to send a total of eight emails to Senator McConnell … with the intent to harass Senator McConnell”); Opp’n at 20 (“the references to Senator McConnell are simply direct and circumstantial evidence of defendant’s intent to harass a specific person”), id. at 21 (arguing that the relevant intent was the intent to harass, not the intent to convey a political opinion).

The only evidence of Weiss’s intent that the Court is aware of comes from Weiss’s interview with law enforcement, in which he admitted to having an intent to harass the Senator, rather than to threaten him. He told law enforcement that he decided to harass Senator McConnell because the senator made political decisions with which he disagreed. He admitted that he used racial slurs in furtherance of his intent to harass the Senator, saying, “that’s just terrible harassment, that’s just anger and bullshit.”

Weiss’s words were violent and repugnant, as even he seems to have eventually understood. But because he did not convey that he himself would harm Senator McConnell, and the government has not identified any basis for concluding that Weiss intended to threaten, rather than harass, the Senator, the “true threat” exception does not apply.

A Ninth Circuit panel composed of Judges Richard Paez, Paul Watford, and Michelle Friedland reversed and found that the throat slashing emails could qualify as a true threat:

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 [turtletheresistancewillbtherefritokillu@hotmail.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.

I have long objected to the loss of civility in our political discourse. Even law professors are now engaging in such reckless rhetoric. Indeed, I have specifically objected to law professors like Laurence Tribe attacking figures like McConnell in vulgar and juvenile attacks. However, I have never taken such irresponsible rhetoric as actual threats. So when Tribe said in 2018 “If you’re going to shoot [Trump] you’re going to have to shoot to kill,” it may have been inciteful but it was not indictable commentary.

Other academics have called for or defended violent acts. Nevertheless, in the past, I have defended extremist views on academic freedom grounds like those of University of Rhode Island professor Erik Loomis, who rationalized the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence. (Loomis also writes for the site “Lawyers, Guns, and Money.”) I also defended faculty who have made similarly disturbing comments on “detonating white people,” denouncing policecalling for Republicans to suffer,  strangling police officerscelebrating the death of conservativescalling for the killing of Trump supporters, supporting the murder of conservative protesters and other statements.

The question raised in the Weiss case is whether such threats sent directly to a single public official cross the line from reckless speech into criminal threats.  I recognize that reasonable people can disagree on where to draw this line but the Ninth Circuit could represent a significant expansion of the exception — and, as a result, a significant limitation for free speech. Much of our political discourse is (unfortunately) expressed in violent terms. People often say “I want to kill that guy” or “I swear I am going to shoot the man” as a way of expressing their passion or anger.

In 1969, the Supreme Court ruled on the case of Robert Watts, a teenager facing the draft, who went to a Vietnam War protest and declared  “if they ever make me carry a rifle, the first man I want in my sights is L.B.J..” He was charged under a 1917 statute prohibiting any person “knowingly and willfully * * * (making) any threat to take the life of or to inflict bodily harm upon the President of the United States * * *.” In a per curiam 5-4 ruling, the Court treated the statement as “political hyperbole,” noting that “[t]he language of the political arena… is often vituperative, abusive, and inexact.”

Such statements are obviously magnified in seriousness when expressed directly to the person. However, I do not see the clear difference with the Bagdasarian case. Weiss is referring to third parties and the “resistance” in his hateful diatribe. There was no evidence of conduct supporting such an alleged criminal threat. My concern remains where to draw this line. As we often discuss, free speech requires bright lines to avoid the chilling effect of uncertain government action.

These messages should be the subject of investigation to determine if they constitute “true threats” and I commend the effort of the Justice Department in that respect. However, the Ninth Circuit opinion seems dangerously ambiguous on when such rhetoric crosses into the realm of criminality.  The panel highlights how this standard turns on how words are received rather than intended:

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.” Keyser, 704 F.3d at 638 (citation omitted).

The panel acknowledged that Weiss’ comments were politically motivated and referred to third parties, but emphasized other factors:

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, Hanna, 293 F.3d at 1088, he associated the sender of the message with the “Resistance” through the email address he provided. Weiss’s message was likely to engender a “fear of violence” by describing when and how the threat would be carried out. Black, 538 U.S. at 360 (citation omitted). And Weiss’s message was “privately communicated” to and “personally targeted” at Senator McConnell, rather than “publicly distributed” or addressed to a broader audience. Planned Parenthood, 290 F.3d at 1086 (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[].” See Fogel v. Collins, 531 F.3d 824, 831 (9th Cir. 2008). 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. United States v. Sutcliffe, 505 F.3d 944, 961 (9th Cir. 2007) (citation omitted)

I have been a long critic of speech regulations or crimes that turn on how words are interpreted by third parties as opposed to how they are intended. The Weiss case lacks any conduct indicating a true threat. Again, I view this as a difficult case but I fear that the Ninth Circuit creates more uncertainty as to what speech will be deemed criminal and what speech will be deemed political. Frankly, in light of the hateful views expressed to Sen. McConnell, I have no sympathy for Weiss. However, this opinion could prove to be a major expansion of the prosecution of political speech.

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