Wednesday, October 01, 2014

Only "true threats" may be constitutionally prohibited, Tenth holds

U.S. v. Heineman, 2014 WL 4548863 (9/15/14) (Ut.) (Published) - The 10th decides an issue in the defendant's favor that the Supreme Court in Elonis v. U.S., will resolve this term: whether 18 U.S.C. § 875(c) violates the First Amendment because it criminalizes making a threat without an intent that the recipient of a message feel threatened. The 10th justifies jumping the gun on the Supreme Court on the grounds that Mr. Heineman might have to wait until next June for the Elonis decision and in the meantime he would be suffering under the "not insignificant sanction" of probation and the restrictions of civil liberties attendant to a felony conviction.

In this case Mr. Heineman defended on the ground that his Asperger's Disorder impaired his ability to understand that others might understand his e-mail to be threatening. First, the 10th reads 10th precedent as not requiring proof of an intent that the victim feel threatened. Next, the 10th dissects its precedent to conclude the 10th has not yet made a First Amendment ruling with respect to § 875(c). This discussion could be useful when we try to interpret 10th precedent as not foreclosing our positions because the 10th cases did not squarely address the issue. Then the 10th holds that Virginia v. Black, 538 U.S. 343 (2003), (anti-cross-burning statute is constitutional if it requires an intent to intimidate), requires the holding that § 875(c) without a subjective intent requirement violates the First Amendment. Only "true threats" may be constitutionally prohibited. True threats under Black include an intent to place the victim in fear. Concurring in the judgment, Judge Baldock concludes § 875(c) requires an intent to instill fear and so there's no need to address the First Amendment issue. A "threat" implies such an intent. He interprets 10th precedent as not addressing the statutory interpretation issue. He also sees no need to hurry up and decide the issue at all since the Supreme Court will decide it soon enough and Mr. Heineman is on probation, not in prison.