"True Threats," Facebook and "Blowing Off Steam"

This post examines an opinion recently issued by a U.S. District Court Judge who sits in the U.S. District Court for the Northern District of Indiana:  U.S. v. Bradbury, 2015 WL 2449641 (May 22, 2015).  He begins by explaining that the federal government has charged

Samuel Bradbury with willfully threatening the use of fire or an explosive in violation of 18 U.S. Code §844(e). The indictment was recently superseded to add an additional charge of maliciously conveying information concerning the use of fire under the same section of the criminal code. . . . In essence, the indictment alleges Bradbury posted a message on Facebook in which he threatened to bomb the Tippecanoe County Courthouse and kill certain law enforcement officers and judges. Bradbury has moved to dismiss the indictment on the grounds that § 844(e) is unconstitutionally overbroad and his post was protected speech under the 1st Amendment. 

U.S. v. Bradbury, supra.

The judge goes on to explain that “[o]n the evening of June 19, 2014, Samuel Bradbury signed on to Facebook and posted a message on his `wall.’” U.S. v. Bradbury, supra. In an opinion the judge issued roughly two weeks earlier, he quoted the message Bradbury posted on his wall in its entirety:

I can't keep silent on this conspiracy anymore. I have to reveal some truth. My buddy and comrade Ant has been catching some flack for some of his posts about killing cops. I have to let out the truth. Jerad and Amanda Miller were losers. They were part of our group, the 765 Anarchists, the town's cop killing group run by none other than myself, Sam Bradbury. When we discovered that Jerad and Amanda were CIs and in with the boys in blue, we sent them out to the Bundy Ranch to cause controversy elsewhere because we didn't need them snitching on our business. I hadn't heard from him since that event, but some of our comrades gave the command and that's why Jerad and Amanda Miller killed those cops in Las Vegas.

I thought Jerad was cool, but fuck him, he was a CI. Great job I must say, but not what we wanted. We, the 765 Anarchists, including myself and Ant are part of a much larger plot that we've been forming for years to kill cops in the local area, and specifically to take out WLPD Officer Troy Green and Tippecanoe County Sheriff, Tracy Brown. Jerad and Amanda were just following 765 Anarchist group orders, but they had fallen out of favor with the group after we discovered they were working with the police as confidential informants. While we are glad that they killed some police, the 765 Anarchists are looking to make waves in the 765 area, specifically Lafayette.

The top two on our hit list are Troy Green of the WLPD and Tracy Brown, Tippecanoe County Sheriff. We have field agents out currently gathering information and planning the attack. We have gathered enough thermite and explosives that we intend to not only kill those two pigs and any others who get in our way, but also to cause extreme damage to the county's various offices' equipment, including police cars and police buildings. Before the month is over, we intend to incinerate and destroy no less than 6 police cars, as well as the Tippecanoe County Courthouse, with hits specifically targeted on Judge Les Meade and Judge Loretta Rush also. The courthouse will be blown to pieces within the month, we have agents operating all over the city, and some all over the country. Ant is nothing more than a fall boy, although we do have plans to use him in a suicide strike on the police or a suicide bombing on a local police building before we are through. Our arsenal is massive, and our group has well over 50 supremely dedicated members who are willing to die. I can't let this story go on falsely anymore, Jerad and Amanda Miller didn't do shit, they were outcasts of the group, but they brought us the attention we needed. I, Sam Bradbury, am responsible for the organization of the group and the acquisition of the chemical weapons, incendiaries, explosives, munitions, and general arms.

We will not stop this plan, we will cause chaos and terror. We will destroy the Tippecanoe County Courthouse in a blaze of glory and we will take out Tippecanoe County Sheriff Tracy Brown, no matter what the cost, even if we lose all of our members in the process, we will not go down without a fight and causing serious damage. So watch out, the cop killers are out. The 765 Anarchists are going to purge the vile pig scum from this land and restore constitutional rights to the people. Call us crazy, call us killers, call us heroes and patriots. We're okay with all of it. Remember–KILL COPS, STICK PIGS, AND WATCH OUT FOR THE 765 ANARCHISTS, INCLUDING SAM BRADBURY AND ANT!

(FREE SPEECH EXERCISE FOOLS)

U.S. v. Bradbury, 2015 WL 2189065 (U.S. District Court for the Northern District of Indiana May 11, 2015). In this opinion, the judge noted that a “few days after the post went up, it came to the attention of Detective Eager of the West Lafayette Police Department”, who opened an investigation into the post and the clams it made. U.S. v. Bradbury (May 11), supra.  As this news story notes, both the federal government and the State of Indiana have charged Bradbury for the comments in his Facebook post. And as Wikipedia explains, under the dual sovereignty doctrine, someone can be prosecuted both by the federal government and by a state for the same conduct, if the conduct constitutes a crime under the law of both jurisdictions.

In his more recent opinion, the judge also explains that

[e]vidently others responded to Bradbury's alarming post with some discomfort and wrote comments stating that they did not agree with his threatening rant. This must have caused Bradbury to suffer from writer's remorse, because a short while later he added disclaiming comments to his earlier post. I say that this happened `a short while later,’ because, I am told by the parties that the exact timing of Bradbury's subsequent comments are unknown. In any event, what he said in his supposed disclaimer was that his prior post was a `complete satire’ and that he was merely engaging `in an exercise of whether free speech still exists in America.’ Bradbury goes on to say that `everything in the (original) post is fake. There is no group, there are no weapons or bombs, and there is no plot’.

U.S. v. Bradbury, supra (May 22).

Getting back to the more recent opinion, after he reviewed the facts above, the judge took up the issue raised by Bradbury’s motion to dismiss the indictment, i.e., whether 18 U.S. Code § 844(e) is “unconstitutionally overbroad and his post was protected speech under the 1st Amendment.” U.S. v. Bradbury, supra.  He returns to that issue later in his opinion, so we will take it up later in this post.

The District Court Judge began his analysis of Bradbury’s argument by noting that, notwithstanding Bradbury’s disclaimers, “the damage had already been done” because Bradbury “was arrested and charged with a violation of 18 U.S. Code § 844(e)”. U.S. v. Bradbury, supra (May 22).  He begins his analysis by quoting 18 U.S. Code § 844(3):

Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate of foreign commerce, or in or affecting interstate or foreign commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive shall be imprisoned for not more than 10 years or fined under this title, or both.

The judge goes on to explain that,

[a]s a plain reading of the statute reveals, there are two ways to violate it: the first is by making `threats’ to use fire or explosives to do harm; the second is to `maliciously convey false information’ to do the same thing. Cutting through the clutter of the statute, it seems clear that the first prong punishes the making of actual threats while the latter one punishes people who convey phony threats. The real thrust of the second prong is to prohibit the making of bomb threats where no bomb actually exists. Whether there is any real difference between the two prongs is debatable. A threat can be phony but it still be an actual threat. More on that later. In any event, Bradbury has moved to dismiss the indictment on 1st Amendment grounds arguing that § 844(e) is unconstitutionally overbroad, both on its face and as applied to him. . . .

U.S. v. Bradbury, supra (May 22). 

He goes on to explain that a statute regulating speech can be

overbroad when it `prohibits a substantial amount of protected speech.’ U.S. v. Williams, 553 U.S. 285 (2008). But facial challenges to criminal statutes on overbreadth grounds are discouraged. See Sabri v. U.S., 541 U.S. 600 (2004). The overbreadth doctrine is `strong medicine’ and must be employed with hesitation and `only as the last resort.’ See New York v. Ferber, 458 U.S. 747 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601 (1973)). That said, the first step of an overbreadth analysis is to construe the challenged statute in order to see how far it reaches. See U.S. v. Williams, supra. And, if possible, I must construe the statute so as to avoid any constitutional problems. See New York v. Ferber, supra.

U.S. v. Bradbury, supra (May 22). 

The District Court Judge then begins his analysis of Bradbury’s overbreadth argument:

It is true that prohibiting the making of threats and the conveying of maliciously false information, as § 844(e) does, criminalizes speech based on its content, and ordinarily, the First Amendment bars the government from content-based speech restrictions. Ashcroftv. ACLU, 535 U.S. 564 (2002). But speech integral to criminal conduct is a different story. That type of speech, like fighting words, threats, and solicitation, is categorically outside of First Amendment protection. U.S. v. White, 610 F.3d 956 (U.S. Court of Appeals for the 7th Circuit 2010). . . .  

A threat constitutes unprotected speech when it is a `serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ Virginia v. Black 538 U.S. 343 (2003). In order to avoid any constitutional problems, Courts have interpreted § 844(e) as prohibiting only this type of speech, often referred to as `true threats.’ See United States v. Spruill, 118 F.3d 221 (U.S. Court of Appeals for the 4th Circuit 1997) (holding 844(e) proscribes only `true threats’); See also U.S. v. v. Viefhaus, 168 F.3d 392 (U.S. Court of Appeals for the 10th Circuit 1999). . . . As construed then, § 844(e) is not overbroad because it does not sweep up `a substantial amount of protected expressive activity.’ See U.S. v. Williams, supra. It only criminalizes true threats, which are outside of 1st Amendment protection.

U.S. v. Bradbury, supra (May 22). 

The judge then begins his analysis, explaining that

[d]eciding when something is a `true threat’ and when it is mere hyperbole is dicey business. A lot of people spout off online via Twitter, Facebook and other social media. That, of course, is their 1st Amendment right. But determining when the comments cross the line from permissible 1st Amendment expression to true threats is difficult. The line is hazy, and the question becomes does speech have to be threatening to a reasonable person who may hear or read the comment or is it the intent of the person making the statement that matters? In other words, is the standard an objective or subjective one? The Supreme Court is grappling with those very questions right now in the case of Elonis v. United States, No.13–983. The appellate decision can be found at 730 F.3d 321 (U.S. Court of Appeals for the 3d Circuit 2013).

Bradbury concedes, as he must, that true threats fall outside of 1st Amendment protection. But he takes issue with how such threats are defined. The [U.S. Court of Appeals for the 7^th Circuit] has traditionally employed an objective standard when determining whether a statement constitutes a true threat. The inquiry asks whether a reasonable speaker would understand that his statement would be interpreted as a threat or whether a reasonable listener would interpret the statement as a threat. See U.S. v. Parr, 545 F.3d 491 (U.S. Court of Appeals for the 7th Circuit 2008). Bradbury argues that this objective standard renders § 844(e) unconstitutionally overbroad.

U.S. v. Bradbury, supra (May 22). 

The judge goes on to point out that

[h]ere's his argument. Threats are barred because they are delivered in a context that causes fear and disruption. `A prohibition on true threats protects individuals from fear of violence and the disruption that fear engenders.' Virginia v. Black, supra (quoting R.A.V.v. City of St. Paul, Minn., 505 U.S. 377 (1991)). Bradbury argues that § 844(e) is overbroad because, as construed, § 844(e) criminalizes speech even if the speaker had no intention of disrupting anything or intimidating anyone. Perhaps he was just blowing off steam or composing a work of fiction. Further, the statute bars threatening speech even if the threat is not actually communicated to someone who could be threatened or whose activities could be disrupted. As a result, the argument goes, § 844(e) sweeps up too much protected speech. In order to pass constitutional muster, then, Bradbury contends that the Court must require 1) that the speaker specifically intend to intimidate someone or cause public disruption, and 2) that the threat actually be conveyed to the threatened party.

U.S. v. Bradbury, supra (May 22). 

The judge, however, explained that the requirement that the threat be

communicated to the threatened party is foreclosed by U.S. v. Parr, 545 F.3d 491 (U.S. Court of Appeals for the 7th Circuit 2008). In that case, Parr was charged with threatening to blow up the federal building in Milwaukee in violation of 18 U.S. Code § 2332a(a)(3). . . . Parr's threats were made in the course of private conversations with his prison cellmate who, unbeknownst to Parr, was an informant. U.S. v. Parr, supra. The 7th Circuit upheld Parr's conviction despite the fact that Parr's threat was made during the course of a personal, private conversation with someone who had no connection to the threatened building. In doing so, the court held that a true threat `doesn't need to be communicated directly to its victim.’ U.S. v. Parr, supra.  

Nor does the 7th Circuit, at least currently, require specific intent. Until the Supreme Court says otherwise, perhaps through Elonis, I am bound to follow and apply an objective standard when determining whether a statement constitutes a threat. U.S. v. Stewart, 411 F.3d 825 (U.S. Court of Appeals for the 7th Circuit 2005); U.S. v. Saunders, 166 F.3d 907 (U.S. Court of Appeals for the 7th Cir.1999). As Bradbury points out, the Supreme Court complicated the objective/subjective issue in Virginia v. Black, when the Court stated that `[t]rue threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ Virginia v. Black, supra (emphasis added). Some took this language to indicate that the Supreme Court had imported a subjective-intent analysis into the true threats doctrine. In Parr, the Seventh Circuit considered the possibility of switching to a subjective intent standard in light of the Black decision, but, ultimately, did not decide the question. U.S. v. Parr, supra. So I am still bound to apply the objective standard. Once again, whether the standard is a subjective or objective one could be answered any day now in Elonis.

U.S. v. Bradbury, supra (May 22). 

The judge also commented, parenthetically, that

[a]s an aside, it's worth noting that most Circuit Courts [of Appeal] that have considered the issue have stuck with the objective standard, notwithstanding what was said by the Supreme Court in Virginia v. Black. See, e.g., U.S. v. Martinez, 736 F.3d 981 (U.S. Court of Appeals for the 11th Circuit 2013) ([18 U.S. Code] § 875(c)] does not require the government to prove a defendant specifically intended his or her statements to be threatening); U.S. v. Mabie, 663 F.3d 322 (U.S. Court of Appeals for the 8th Circuit 2011) (government need only prove a reasonable person would have found defendant's communications conveyed an intent to cause harm or injury. . . .

I think the majority approach is correct. A subjective intent standard would fail to protect the public from the fear and disruption caused by statements that a reasonable speaker would know were threatening, even if he meant no harm. The better-safe-than-sorry response from law enforcement in this case proves the point. Requiring evidence of specific intent could also prove to be very difficult and time-consuming. If Bradbury can convince a jury that no reasonable person could have taken him seriously, then he will be rightly acquitted. But he must face that jury. Accordingly, Bradbury's facial challenge to 844(e) fails because the statute regulates a prohibited category of speech—objective true threats-- and is tailored to ensure a `direct causal link between the restriction imposed and the injury prevented.’ U.S. v. Alvarez, 132 S.Ct. 2537 (2012).

U.S. v. Bradbury, supra (May 22). 

The District Court Judge therefore concluded by explaining that Bradbury also brought

an as-applied challenge to the indictment. He argues that his Facebook post is constitutionally-protected political speech and therefore cannot form the basis of a criminal prosecution. Bradbury may well be right. But, as I said, whether a speech is a true threat or just political hyperbole is a question for the jury at trial, and not for the Court at the motion to dismiss stage. U.S. v. Parr, 545 F.3d 491 (U.S. Court of Appeals for the 7th Circuit 2008) (whether a defendant's statements are ultimately deemed a threats is a question for the jury). . . .

U.S. v. Bradbury, supra (May 22). 

He therefore denied Bradbury’s motion to dismiss the charge against him.  U.S. v. Bradbury, supra (May 22).  As noted above, his trial on these federal charges is scheduled for later this year (as is his trial on the parallel state charges).