17 April 1999.
Source: Digital file from GG and JG. Original hardcopy 13 pages.

For cited exhibits (not provided with the motion) and background see: http://jya.com/cejfiles.htm

Judge Bryan

The government charges that Carl Johnson was the author of three separate threatening communications, all transmitted via the Internet.

(1) e-mail forwarded to the Cypherpunks membership via their mailing list on June 23, 1997, allegedly threatening Magistrate Judge Arnold; (2) e-mail forwarded to the Cypherpunks mailing list on December 9, 1997 allegedly threatening Judge Fletcher; and (3) e-mail forwarded to Microsoft and allegedly threatening Bill Gates on March 20, 1998.

The first two communications, comprising counts one thorough four, were both transmitted only to members of the Cypherpunks mailing list as part of discussions of litigation concerning cryptography and privacy on the Internet and often including vehement criticism of the government's position on those issues. The 6/23/97 message lists the sum of $2,610.02 alongside the name of Magistrate Judge Kelly Arnold, under the heading "Leading eCa$h candidates for dying at an opportune time to make some perennial loser "Dead Lucky". [Exhibit 1]. The communication quite clearly does not expressly threaten or advocate harm to the Magistrate Judge. Considerable further context must be established to suggest what the significance of the dollar amount is and how this might be construed as a death threat. The government contends that an "assassination politics" scheme authored by James Bell and a "Dead Lucky" web page associated with the defendant establish that the 6/23/97 communication should be interpreted as a method by which others may pledge money to be paid to anyone (potentially an assassin) who predicts the time and location of the subject's death. Note that the "Dead Lucky" web page states that until an "official starting date" this is a contest "For Entertainment Purposes Only". [Exhibit 2]. The scheme is highly conditional and contingent, depending upon the extraordinary assumption that third persons would take action in response to the message in a manner that would present a legitimate threat or danger to the Magistrate Judge. In this respect it appears to be a potential incitement, as distinguished from an actual threat.

The 12/9/97 communication, alleged to be a threat directed at Judge Fletcher (and two other Ninth Circuit judges) is similarly indirect and inferential. [Exhibit 3]. It consists of one paragraph in a five page diatribe, concerning argument before the Ninth Circuit in Bernstein v. United States, a case concerning encryption and Internet privacy. [Exhibit 4]. The overall theme of the communication is criticism of the position of the government, perceived to be adversarial to free speech on the Internet. Interestingly, the message mentions Judge Fletcher's observation that the government's case was "puzzling" (although the author thinks that does not go far enough). The message subsequently refers to a "death threat", placing that phrase in quotes, and the pertinent part of the message then states:

"You can [harm] some of the people all the time, and all of the people some of the time, but you are going to end up in a body bag or pine box before you manage to [harm] all of the people all of the time."

Am I going to whack you out? Maybe... I would prefer just dumping some tea in Boston Harbor,...

The alleged threat is well within the type of rhetoric, advocacy and political hyperbole which the foregoing cases hold to be protected by the First Amendment.

The third threatening communication is directed toward Bill Gates, rather than a judge or political figure, although Bill Gates is certainly is a public figure. [Exhibit 5]. The body of the message is generally favorable to Gates in spite of his monopolization of computer operating systems. The message concludes: "Microsoft shouldn't be blamed because they were smarter than the rest of the industry... Every one of you would do it the same way if you were Bill Gates running the largest software empire in the world, whether you would like to admit it or not." However, the caption in the header of the message states: "Subject: I'm still planning your assassination, my support of you is only to shorten the line ahead of me. ... Blanc, Jeff, are you in position? Can you get off a clean shot?" The communication is an obvious joke which no reasonable person could conclude was a valid threat.

Argument

The offenses charged in the superseding indictment all involve pure speech and therefore necessarily implicate and are limited by the First Amendment. In Watts v. United States, 394 U.S. 705, 22 L.Ed. 2d 664 (1969) the Supreme Court established the "true threat" doctrine:

a statute such as this one, which makes criminal a form of free speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.

Id. at 707. Under Watts, to pass constitutional muster, the government must prove the communication is a "true threat". In a per curiam opinion the Supreme Court reversed Watt's conviction for knowingly and willfully threatening the life of the President. The communication made by Watts was a very specific threat, made in the context of his announced refusal to report for his draft physical: "If they ever make me carry a rifle, the first man I want to get in my sights is LBJ". Watt's statement was held to be "political hyperbole" and not a true threat. Thus, depending upon the context of a statement, even an explicit death threat may be protected by the First Amendment. The Court noted:

The language of the political arena ... is often vituperative, abusive and inexact. [The petitioner's] ... only offense here was "a kind of very crude offensive method of stating a political opposition to the President."

394 U.S. at 706.

The defendant in Watts was expressing his grievance with the government, not inciting unlawful action. The statement did not clearly present an imminent threat to the President. The importance of this consideration was emphasized by a second per curiam opinion, also decided in 1969. Brandenburg v. Ohio, 395 U.S. 444, 22 L.Ed. 2d 664 (1969) reversed the conviction of a Klu Klux Clan leader. At a rally, armed, hooded clan members burned a cross, making statements such as: "This is what we are going to do to the niggers." ... "Bury the niggers". The Brandenburg court overruled earlier decisions and formulated the following "incitement" test with respect to speech which advocates unlawful conduct:

These later decisions have fashioned the principal that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

395 U.S. at 447. Advocacy, even of violence, is protected by the First Amendment as long as the advocacy does not incite people to imminent action. Under Brandenburg the Court developed a new test for the validity of a conviction which penalizes speech. The state must prove: (1) the speaker subjectively intended incitement; (2) in context, the words used were likely to produce imminent, lawless action; and (3) the words used by the speaker objectively encouraged, urged and provoked imminent action. Rotunda and Novak, Treatise on Constitutional Law, 2^nd Ed., §20.15, at p. 70.

Hess v. Indiana, 414 U.S. 105, 38 L.Ed. 2d 303 (1973) applied the test in Brandenburg. Hess had been arrested after he shouted during an anti-war demonstration "we'll take the fucking streets later (or again)" and was charged with disorderly conduct. The Supreme Court again reversed by per curiam opinion, holding:

... at worst it amounted to nothing more than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the state to punish Hess' speech.

414 U.S. at 108. Similarly, in NAACP v. Claiborne Hardware, 458 U.S. 886 (1982) the Court unanimously held that a statement by Charles Evers, the leader of a boycott referring to the possibility that "necks would be broken", was rhetoric which "did not transcend the bounds of protected speech set forth in Brandenburg." The Court noted that "strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases" and even acknowledged that some violence did follow Evers' speeches.

The "true threat " doctrine and the Brandenburg test were analyzed and applied in United States v. Jake Baker, 890 F.Supp. 1375 (E.D. Michigan, 1996). The defendant had exchanged e-mail with an unidentified person using the screen name, Arthur Gonda. In very specific and detailed messages they discussed violence against women and girls, including fantasy kidnaping and murder scenarios. One story graphically described the torture, rape and murder of an actual female classmate of Baker's at the University of Michigan. A person who saw some of the communications on an electronic bulletin board notified the University and Baker was suspended and subsequently charged in federal court with five counts of violating 18 U.S.C. 875(c), by transmitting threats in interstate commerce, via the Internet. The district court held that the question of whether of not the prosecution encroached on constitutionally protected free speech was a question properly decided by the Court as a threshold matter, and in a pretrial ruling dismissed all five counts, holding that they were not "true threats" and therefore were protected by the First Amendment. 890 F.Supp 1375. After discussion of the Watts and Brandenburg decisions, the district court noted that the only extended discussion of the constitutional dimension of the "true threat" requirement in the Circuit Courts of Appeals was found in United States v. Kelner, 534 F.2d 1020 (2^nd Cir.), cert. denied, 429 U.S. 1022 (1976):

The purpose and effect of the Watts constitutionally-limited definition of the term"threat" is to insure that only unequivocal, unconditional and specific expressions of intention immediately to inflict injury may be punished - only such threats, in short, as are of the same nature as those threats which are ... "properly punished every day under statutes prohibiting extortion, blackmail and assault without consideration of First Amendment issues." Watts, 402 F.2d at 690. ...

So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional and immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution, the statute may properly be applied.

Kelner, 534 F.2d at 1027⁽¹⁾

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1. Kelner was convicted and the conviction was affirmed, but only after finding that the threat was unambiguous and an immediate threat on the life of Yasser Arafat. Kellner displayed a .38 caliber handgun and was accompanied by other persons in military fatigues and stated: "We have people who have been trained and who are out now and who intend to make sure Arafat and his lieutenants do not leave this country." ... "We are planning to assassinate Mr. Arafat". ... "Everything is planned in detail." ... "It's going to come off." Arafat had in fact just arrived in the same city to attend a session of the United Nations.

The Baker opinion notes that the question of whether a statement is a "true threat" for purposes of First Amendment limitation, is distinct from the question of the defendant's intent, commenting that the distinction is often confused in the case law. Thus cases observing that the there is no requirement that the defendant actually intend to carry out the threat, do not necessarily address the constitutional "true threat" requirement elucidated in Watts, Brandenburg, and Kelner. The Baker opinion refers to the following quote from Justice Brandeis:

Fear of serious injury cannot alone justify suppression of free speech... To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable grounds to believe that the danger is imminent.

quoting from Whitney v. California, 274 U.S. 357,376 (1927).

As shocking and appalling as Baker's statements were and despite the risk that the scenarios expressed were so deviant as to raise concern that the defendant might be unstable and likely to act out his fantasies, there was no indication of an intent to act imminently. The unsettling or alarming nature of the message did not make it a "true threat" for purposes of the first Amendment.

On appeal, the Sixth Circuit affirmed the dismissal, but on different grounds. United States v. Alkhabaz, ⁽²⁾ 104 F.3d 1492 (6^th Cir. 1997). Because the communications charged in the indictment were e-mail messages between the defendant and a person known as Arthur Gonda, they were not conveyed in any manner to intimidate the threatened individual. The opinion discusses the absurdity of a literal interpretation of the statute which would criminalize the mailing of defendant's letters by the U.S. Attorney to another government official or the mailing of the court's opinion by West publishing, containing the verbatim language used by the defendant. Each of these fits the literal language of the statute, transmission in interstate commerce of a threat to injure. Thus the communication may be considered to be a threat only if made to someone with a connection to the threatened individual, or to the target individual. It must be more than a shared fantasy; it is not a threat unless it is conveyed to achieve some goal through intimidation.

Although it may offend our sensibilities, a communication objectively indicating a serious expression of an intention to inflict bodily harm cannot constitute a threat unless the communication also is conveyed for the purpose of furthering some goal thorough the use of intimidation. ... Baker and Gonda apparently sent e-mail messages to each other to foster a friendship based on shared sexual fantasies.

104 F.3d at 1495-6.

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2. Jake Baker's correct name apparently is Abraham Alkhabaz.

Rankin v. McPherson, 483 U.S. 378 (1987), is a pertinent civil case in which the Supreme Court applied Watts. In that case, an employee in a sheriff's office was fired because after hearing of an attempt on the life of President Reagan she stated to a co-worker,"if they go for him again, I hope they get him." The Supreme Court held that her discharge violated her First Amendment right to freedom of expression. The opinion notes that the statement was made during the course of a conversation addressing the policies of the President's administration. In context it dealt with a matter of public concern and therefore was entitled to First Amendment protection regardless of how inappropriate or controversial the statement was. Citing Watts, the Court commented that the statement was not a threat punishable under Title 18 "or, indeed, that could properly be criminalized at all." Thus merely agreeing with the proposition that the President should be assassinated, is protected free speech.

No Ninth Circuit opinion has been found which discusses the application of Watts, and Brandenburg, as carefully as the opinions cited above. Generally, however, they are in harmony with those cases. United States v. Gordon, 974 F.2d 1110 (9^th Cir. 1992)affirmed a conviction for a threat against former President Reagan. Evidence was held sufficient to establish a true threat where defendant had actually entered the Reagan residence. The opinion notes that the threat must be one which a reasonable person would interpret as a serious expression of an intent to inflict bodily harm and the jury must find that the defendant intended the statements to be taken as threats.

In United States v. Orozco-Santillan, 903 F.2d 1262 (9^th Cir. 1990) defendant's conviction was affirmed where he personally told the officer who had arrested him that he would "kick his ass". There clearly was no political component to the communication and it was communicated directly to the target of the threat.

United States v. Gilbert, 884 F.2d 454 (9^th Cir. 1989) involved an Arayan Nation white supremacist who threatened shooting or hanging blacks, communicated to the manager of an adoption agency that placed minority children with white families. Additionally, he drove his car toward an adopted black child and directly threatened other black children. The conviction was affirmed after considering the entire factual context.

In Lovall v. Poway, 90 F.3d 367 (9^th Cir. 1996) there was a face to face confrontation between the defendant and her school counselor and the defendant allegedly threatened to shoot the counselor. The opinion notes that the statement was unequivocal and specific enough to convey a true threat of physical violence. The opinion quotes the Second Circuit opinion in Kelner,: "so long as the threat on its face and in the circumstances in which it is made is so unequivocal, conditional, immediate and specific... as to convey a gravity of purpose and imminent prospect of execution, the statute may be properly applied."

In Melugin v. Hames, 38 F.3d 1478 (9^th Cir. 1994 ) the defendant threatened a state judge, for not setting a trial date. The threat was not political hyperbole and was made directly to the judge. Similarly, in Roy v. United States, 416 F.2d 874 (9^th Cir. 1969) a marine at Camp Pendleton made a threat against President Reagan by telephone to other personnel on the base. It was considered a "true threat" because the President was actually scheduled to arrive there the next day.

Conclusion:

The Watts line of cases establishes that even a specific and literal death threat against the President is protected by the First Amendment, if it expresses political opposition which does not incite imminent lawless action. The charged threats against judges in this case were clearly made in a forum which was substantially involved in discussion and criticism of actions of the government, including discussion of court cases concerning cyberspace, cryptography and privacy of Internet communications. Indeed, the government charges the first four counts of the indictment specifically in the context of criticism of judicial and governmental policies in pending cases. Accordingly, these communications are entitled to the utmost protection of the First Amendment. As Brandenburg makes clear, even advocacy of violence is protected free speech if it does not incite imminent lawless action.

Here the threats directed at judges are not only made in a political forum but are indirect, qualified, conditional and abstract. They are not communicated outside of that forum.⁽³⁾ These threats do not meet the stringent requirements of the Watts and Brandenburg cases.

Respectfully submitted,

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Gene Grantham
Attorney for Carl Johnson

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3. IRS Agent Gordon is a member of the Cypherpunks mailing list, for the purpose of monitoring their communications.