Even the most ardent supporters of the Constitution agree that there are limits to the rights it grants. For the First Amendment right to free speech, one limit is on threats, which are forbidden by a federal law. That law was the focus of a challenge brought by a South Florida resident after she was convicted of breaking it. In U.S. v. Martinez, Ellisa Martinez sent an anonymous email to a radio talk show host and followed it with an anonymous phone call, in which she said her husband planned to open fire at a Broward County school. When Martinez was identified as the caller, she was convicted of
sending a threatening communicationand sentenced to repay the costs caused by the threats. Her appeal argued that the statute was unconstitutional because it didn’t require prosecutors to show she intended to make a threat. The Eleventh U.S. Circuit Court of Appeals rejected that argument.
Martinez sent an anonymous email to a radio talk-show host in 2010 saying she was “planning something big around a government building here in Broward County, maybe a post office, maybe even a school, I’m going to walk in and teach all the government hacks working there what the 2nd Amendment is all about… what does sarah say, don’t retreat, reload!” Several hours after this was sent, an anonymous woman called the same radio station to say her husband had sent the message, was mentally ill and was planning to shoot up a school. She asked the station to broadcast a message asking the “husband” not to go through with it. Local police responded by locking down the Broward County schools and several other government buildings, triggering $5,350.89 worth of police overtime. Nobody carried out the threats, and police eventually traced them to Martinez. After initially denying all knowledge, she pleaded guilty to making a threat but reserved the right to appeal. She was sentenced to repay the county’s costs.
On appeal, Martinez argued that her indictment was deficient for failing to allege that she intended to convey a threat, and that if that wasn’t a requirement of the statute, that the statute was unconstitutionally overbroad. The Eleventh started by noting that “true threats,” meaning threats that are not just political hyperbole, are not protected by the First Amendment. Martinez argued that under a Supreme Court decision, Virginia v. Black, courts should look to the speaker’s subjective intent when determining whether a statement is a true threat. But the Eleventh found that this argument has been rejected by four of the five federal appeals courts to consider it. It joined those circuits and ruled that a speaker makes true threats when she knowingly communicates a serious expression of violent intent, even if she doesn’t intend it as a threat, to break the law or to carry it out. Thus, the court rejected the first half of her argument. On the second, it said the statute is not unconstitutionally broad because it doesn’t sweep up substantial protected speech; it sweeps up none because it applies only to true threats. It upheld her conviction.
It’s easy to sympathize with people who argue for more free speech, because freedom of speech is a basic American value.Bringing criminal charges against someone for mere speech—particularly speech that could be considered nothing more than the expression of strong opinions—could be considered a form of censorship. And speech over the Internet is entitled to all the same protections as in-person speech—even though it’s easier to forget that real people are listening at the other end of the Internet connection. But many free speech issues have been thoroughly considered by the courts, including apparent or actual threats like this one. As a result, it’s difficult to win a free-speech challenge without a fresh constitutional issue.
Based in Miami, Seltzer Mayberg, LLC, defends people accused of serious crimes across the state of Florida. To tell us your story and learn about your options at a free consultation, don’t hesitate to call us, 24 hours a day, at 1-888-THE-DEFENSE (1-888-843-33330 or send us a message online.
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