Constitutional law - Eleventh Circuit holds true threats doctrine analyzed under objective standard - United States v. Martinez.

• Author: Holland, David T.

Constitutional Law--Eleventh Circuit Holds True Threats Doctrine Analyzed Under Objective Standard--United States v. Martinez, 736 F.3d 981 (11th Cir. 2013)

Although the First Amendment generally bars government restrictions on speech based on message or viewpoint, the government may restrict certain categories of speech where the speech's content imposes harm that "'overwhelmingly outweigh[s]' any First Amendment concerns." (1) A true threat constitutes one such category of unprotected speech. (2) In United States v. Martinez, (3) the Court of Appeals for the Eleventh Circuit considered whether a true threat must be analyzed under an objective or subjective standard. (4) The court held that true threats are analyzed under an objective standard, and following therefrom, the indictment of the defendant was constitutional where she made a threat that "'an objectively reasonable jury could find beyond a reasonable doubt to be a serious expression of an intent to injure another person.'" (5)

On November 10, 2010, Ellisa Martinez sent an anonymous "form-response" email to talk-show host Joyce Kaufman at WFTL radio. (6) The anonymous email stated that the author was "planning something big around a government building ... maybe even a school," and that the author was "going to walk in and teach all the government hacks working there what the [Second A]mendment is all about." (7) Hours after sending the email, Martinez called WFTL as an anonymous caller and told the station that her mentally-ill husband sent the email and that he planned on opening fire at a nearby school. (8) The Pembroke Pines Police Department instituted a code-red lockdown on all Broward County schools and shut down several other public buildings due to the communications from Martinez. (9) Investigators soon found that the anonymous communication was from Martinez. (10)

Martinez maintained that she was innocent until a grand jury indicted her for violating 18 U.S.C. [section] 875(c). (11) Once indicted, Martinez admitted that she had made the communications and filed a motion to dismiss the indictment, which was denied by the district court. (12) By pleading guilty, Martinez reserved the right to appeal the denial of her motion to dismiss the indictment. (13) She appealed on the issues of "whether the indictment was insufficient because it did not allege Martinez subjectively intended to convey a threat to injure others;" and "whether [section] 875(c) was unconstitutionally overbroad because it did not require the Government to prove the speaker subjectively intended her statements to constitute a threat." (14)

Martinez agreed that she sent the email knowingly and willfully and that a reasonable jury could find that it was a "'serious expression of an intent to injure another person.'" (15) The district court accepted her guilty plea and ordered her to pay $5,350.89 for the costs incurred by the government in securing the schools and safeguarding the students. (16) Martinez appealed her conviction for knowingly transmitting a threatening communication in violation of 18 U.S.C. [section] 875(c); and she claimed her indictment was unconstitutional because it did not allege that she subjectively intended to convey a threat to injure others, which she asserted was required by precedent. (17)

The First Amendment protects free speech by barring the government from restricting most speech, even where a majority of people disagrees with the expression or where such expression is false. (18) Statutes that suppress free speech can have the unintended effect of restricting "free trade in ideas." (19)

Therefore, those statutes must be scrutinized under the "'national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'" (20) Nonetheless, the constitutional right to free speech is not absolute, and the government may regulate certain types of speech when social interest and morality outweigh the social value of the speech's content. (21)

True threats constitute a category of speech falling within the free-speech exception, and the government may ban such speech in certain circumstances. (22) According to Virginia v. Black, "'[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." (23) The true-threats exception was first expressed by the Supreme Court in Watts v. United States, where the Court held that the speech was not a true threat, but rather "political hyperbole." (24) Following Watts, the Supreme Court did not address the doctrine again for over thirty years, until the Black decision in 2003. (25) After Watts, and until the Supreme Court's decision in Black, most courts examined the true-threats exception under an objective standard. (26)

Since Black, federal courts of appeals have split on the issue of whether a true threat should be analyzed under an objective or subjective standard. (27) Under the objective analysis, a threat is examined by looking at how a reasonable person would perceive the communication. (28) Under a subjective analysis, the threat is examined by looking at whether the alleged offender actually intended his or her actions to be perceived as a threat. (29) Most circuits have held that Virginia v. Black did not alter the analysis for true threats because of the long-standing objective standard and the language used by the Court. (30) Many of these courts have reasoned that the objective analysis protects citizens better than the subjective test. (31) To date, only one circuit has held that Black requires a subjective-standard analysis for true threats. (32)

In United States v. Martinez, the Eleventh Circuit followed the majority of circuit courts by holding that a true threat should be analyzed by looking at the defendant's objective intent. (33) In determining whether the jury's indictment of Martinez was insufficient where it did not allege that she subjectively intended to express a threat to injure others, the court looked first to the standard set in Watts, then to whether or not Black altered that standard. (34) The court initially considered whether Martinez's actions constituted a true threat under the pre-Black definition of the term. (35) The court reasoned that a true threat is a category of unprotected speech under United States v. Alvarez, and under Watts, statutes penalizing speech must be interpreted with the First Amendment in mind. (36) The court further reasoned that an important distinction must be made between true threats and extreme political statements. (37) Finally, the court articulated that the conclusion in Watts was reached based on the objective characteristics of the speech and the context in which it was delivered. (38)

The court then considered whether, under Black, a true threat should be analyzed by looking at the defendant's subjective intent. (39) The court reasoned that Black was primarily a case about the "overbreadth of a specific statute." (40) In Black, the law itself required subjective intent, and therefore, whether the true-threats doctrine requires subjective intent was not at issue. (41) The court reasoned that Black's definition of true threat was consistent with a general-intent standard, which requires examining only the objective characteristics of the speech. (42) Based on the foregoing, the court concluded that the Supreme Court in Black did not intend all true threats to require specific intent because the Court explicitly required subjective intent for a specific type of true threat: intimidation. (43) Finally, the court cited policy reasons, including protecting citizens from the fear of violence, for declining to alter the objective-standard analysis of true threats. (44)

While the court was correct in its conclusion that a true threat should be analyzed under an objective standard, it did not sufficiently address the adverse effects such a standard would have on free speech and the potential benefits of a subjective standard. (45) An objective standard puts the essential American right of free speech in jeopardy by unduly allowing certain expressions to fall outside of constitutional protection. (46) Citizens may be overly careful not to express their thoughts because they will worry that they might be criminally charged for making a threat when they are simply expressing themselves. (47) Furthermore, determining true threats based on an objective standard may allow the speaker's constitutional rights to be conditioned on how a recipient feels about such communication. (48) Finally, under the objective standard, one can be punished for negligent speech, an idea rejected by the Supreme Court. (49)

The court was correct in its conclusion that Black did not alter the objective standard. (50) In Black, the court did not have the occasion to reach the issue of subjective intent because the underlying statute already required subjective intent. (51) The court would have addressed the subjective versus objective test directly if it...