United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PHILIP P. SIMON, District Judge.
The government has charged Samuel Bradbury with willfully threatening the use of fire or an explosive in violation of 18 U.S.C. § 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 The indictment was recently superseded to add an additional charge of maliciously conveying information concerning the use of fire under the same section of the criminal code [DE 63]. 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 First Amendment. For the reasons stated below, the motion is DENIED.
On the evening of June 19, 2014, Samuel Bradbury signed on to Facebook and posted a message on his "wall." I am going to paraphrase the message here, but readers can refer to my May 11, 2015 order for the full text [DE 59].
In his post, Bradbury stated that he was part of an organization, "the 765 Anarchists, " who are organized to kill cops in the Lafayette area. 765 is the area code in the Lafayette area. Bradbury wrote that Jerad and Amanda Miller, Lafayette residents who had recently murdered two police officers in Las Vegas, had acted on the Anarchists's orders. He wrote that the Anarchists were targeting West Lafayette Police Officer Troy Green and Tippecanoe County Sheriff Tracy Brown, and would kill these two individuals no matter what the cost. He wrote that the Anarchists had gathered enough thermite and explosives to cause "extreme damage" to Tippecanoe County buildings and equipment [DE 39 at 7]. And he stated that, within the month, the Anarchists planned to incinerate six police cars, burn the Tippecanoe County Courthouse, and kill Judge Les Meade and Judge Loretta Rush. Bradbury stated that he was responsible for organizing the group, and that he had acquired "chemical weapons, incendiaries, explosives, munitions, and general arms." Id.
After the peroration - "KILL COPS, STICK PIGS, AND WATCH OUT FOR 765 ANACHISTS", etc. - Bradbury ended the post with a parenthetical stating "FREE SPEECH EXERCISE FOOLS." Id. at 8. Evidently 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" [DE 58-1].
But the damage had already been done. Bradbury was arrested and charged with a violation of 18 U.S.C. § 844(e) [DE 14]. That statute provides:
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.
As 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 First Amendment grounds arguing that § 844(e) is unconstitutionally overbroad, both on its face and as applied to him [DE 26].
A statute regulating speech can be overbroad when it "prohibits a substantial amount of protected speech." United States v. Williams, 553 U.S. 285, 292 (2008). But facial challenges to criminal statutes on overbreadth grounds are discouraged. See Sabri v. United States, 541 U.S. 600, 609 (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, 769 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (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 Williams, 553 U.S. at 293. And, if possible, I must construe the statute so as to avoid any constitutional problems. See Ferber, 458 U.S. at 769 n.24.
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. Ashcroft v. ACLU, 535 U.S. 564, 573 (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. United States v. White, 610 F.3d 956, 960 (7th Cir. 2010) (citing Williams, 553 U.S. at 297).
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, 359 (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, 228 (4th Cir. 1997) (holding 844(e) proscribes only "true threats"); See also United States v. Viefhaus, 168 F.3d 392, 395 (10th Cir. 1999); United States v. Leaverton, 835 F.2d 254, 257 (10th Cir. 1987). As construed then, § 844(e) is not overbroad because it does not sweep up "a substantial amount of protected expressive activity." See Williams, 553 U.S. at 297. It only criminalizes true threats, which are outside of First Amendment protection.
Deciding 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 First Amendment right. But determining when the comments cross the line from permissible First 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 (3d Cir. 2013).
Bradbury concedes, as he must, that true threats fall outside of First Amendment protection. But he takes issue with how such threats are defined. The Seventh 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 United States v. Parr, 545 F.3d 491, 499 (7th Cir. 2008). Bradbury argues that this objective standard renders § 844(e) unconstitutionally overbroad.
Here'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." Black, 538 U.S. at 359 (quoting R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 388 (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 ...