-: SJC-13595,
Commonwealth versus Arickson Cruz.
-: Good afternoon, and may it please the court.
Cruz's conviction can't stand
for the same reason the defendant in Counterman's couldn't.
Oh, I'm sorry. I forgot to introduce myself.
My name is Rachel Rose,
arguing for defendant-appellate, Eric Cruz.
Justice Kafker: Hey, can you,
I remember from last time you spoke,
could you slow down, okay?
Because you're speaking through a mask
and you're talking really fast.
-: This time I will get it right.
Justice Kafker: Okay. (chuckling)
-: Cruz's jury instructions only asked
what a reasonable person might think of what he said.
Not whether he, the speaker,
was at least consciously disregarding a substantial risk
that his communication would be viewed
as a serious threat of violence.
The Supreme Court is clear that the Constitution
doesn't allow punishment of speech
that's only unintentionally
or negligently threatening,
even if it contains outwardly violent language.
That's all that the Commonwealth proved this was.
So it needs to be reversed.
You can't substitute a per se rule
for the determination of intent
that the Constitution requires,
or a lot of the angry rhetoric
and even jokes that we see all the time becomes illegal
and subject to prosecution
as soon as they're communicated to a particular person
or the listener thinks
you're talking about someone in particular.
That's an unbelievably draconian state of affairs
and it's completely inconsistent with the First Amendment.
-: Okay, so just to clarify,
the missing element here,
we have, there was a four-part instruction,
but we have one missing piece to that instruction, right?
Which is that the state must show
the defendant consciously disregard a substantial risk
that his communication
would be viewed as threatening violence, right?
Attorney Rose: Yes, that's right.
-: So if that had been in the instruction,
we'd be, that instruction would be fine, correct?
Attorney Rose: That would be fine.
-: The rest of the instruction,
and he's gonna stand up and argue
that other parts of the instruction,
particularly one and two maybe,
that, excuse me, that the defendant intended
that his threat be conveyed to a particular person.
And third, that the injury that was threatened,
if carried out, would four,
it's two and four, I think he's gonna argue,
make up for that.
Four, that the defendant made the threat under circumstances
which could reasonably have caused the person to
if it was conveyed
to fear that the defendant had both the intention
and the ability to carry out the threat, right?
Attorney Rose: That's correct.
-: So tell me why he's wrong, okay?
Attorney Rose: What, why oh, why he's wrong?
-: Why the Commonwealth is wrong, okay?
-: Well, what the government is asking for
is basically that if you say any outwardly violent words,
then that's an expression of an intent
and anyone can reasonably take it that way.
Yes, and that's true.
Anytime someone says something,
that's on its face is a violent threat,
there's always somebody, even a reasonable person,
who could take it, that you're speaking seriously.
But the Supreme Court is clear
that that is not good enough to protect our freedoms
under the First Amendment.
That we have the right to make these sort of jokes,
that we have the right to make this sort of angry rhetoric,
if we are only unintentionally
or negligently saying something,
unless we really know
that that is how it's going to be received when we say it.
That's something that the government can't punish.
-: Okay, but let's just get into the weeds here a little bit.
So the defendant intended that this threat
be conveyed to the victim, okay?
And then the defendant made the threat
under circumstances which could reasonably
have caused the person to whom it was conveyed
to fear that the defendant had both the intent.
So I see that there may be a missing piece here,
but it's pretty close, right?
You're intending the threat to that person
and the threat that you conveyed
reasonably could have caused the person
to made the threat under circumstances
which reasonably could have caused the person
who was conveyed to fear that defendant
had both the intention and the ability
to carry out the threat, right?
-: Well, it's not that,
I mean, it actually is quite different.
It's the difference between, in plain terms,
I can see how it could be taken that way,
and anyone should have known
that's how it would be received.
And there's actually, there's a lot of jokes.
There's a lot of political rhetoric,
there's a lot of discussions that go on
to a particular person.
-: We're not dealing with jokes and political rhetoric.
We're dealing with, "If you touch my kids again,
I'm going to," I can't remember, what's the end of it?
"I'm gonna-"
Attorney Rose: All right, "If you touch my kids again,
I'll punch you in the face."
-: Okay, so we have,
there's not a lot of ambiguity there, right?
-: Yes, the question is whether it was intended
to place certain fear of an illegal act
or whether it was intended to tell her
to leave my kids alone.
-: You're talking about the absence of a mens rea requirement
of at least recklessness.
And here the statute or the elements as instructed
have the reasonable person objective standard, correct?
-: That's correct.
And the Counterman decision has said,
I mean almost in exactly those words,
the instruction-
Justice Gaziano: Why is the statute vague?
Why can't we just fix it?
-: Well, the statute isn't vague so much
as it's facially overbroad.
Justice Gaziano: Well, why can't we fix it?
-: (chuckling) You'd have to fix the statute itself,
essentially the jury instructions-
Justice Gaziano: We'd have to give jury instructions
that conform to the new, new SCOTUS case, right?
-: Well see what was done last time,
was in Commonwealth v Sholley,
Counterman says that the kludge of redefining threat
that was used last time isn't good enough.
They said "If courts were at liberty
to redefine what counts as a threat,
this would achieve the same results
as creating new categories of unprotected speech."
-: Well, wouldn't we say these jury instructions are flawed?
The objective standard's out,
put in a recklessness standard.
-: If you revise the jury instructions, yeah.
Only prosecutions of true threats would reach conviction.
Justice Gaziano: Right.
-: But that does nothing to
solve the chilling effect problem
that the Counterman court is clear
is why they made this ruling.
So for a statute punishing only pure speech on its face,
275 Section 2 covers a lot of ground
that falls outside of any of the exceptions
to the First Amendment.
Only violent threats are true threats.
But if you read the language of the statute,
combined with the instructions that Cruz's jury received,
that would've allowed for a conviction
over a threat to vandalize a neighbor's offensive yard sign.
You can prosecute for doing that,
but you can't prosecute for saying it.
Whether his text message was intended as a real threat
or just angry hyperbole
wasn't something that his jury was ever asked to decide.
But it was the dividing line of illegality
and the only thing at issue in the case.
-: Remind me, did the Supreme Court rewrite the statute
in its case or did it just redo the jury instructions?
Attorney Rose: It struck it down, I think.
Yeah, but in any case,
that's not a direct, it's not a direct corollary,
the statute in that case,
'cause it's a stalking statute.
-: Can we answer the question?
If you know the answer, it would be nice to tell us.
Attorney Rose: I used to.
-: Because I see your point about chilling effect.
Juries, I mean, when you don't know
what the jury instructions are
when you're threatening the victim.
Attorney Rose: Right, the jury instructions.
-: But I'm trying to figure out what the Supreme Court
was actually said.
-: Well, in terms of overturning, well, the,
the Virginia statute is not, can't really be compared to,
I mean that section of it can, but let's see.
-: That's important.
'Cause if they said,
"Okay, if you narrow it through instructions
or interpretation," that gets away
that they're comfortable with the chilling effect
that you're not comfortable with.
-: No, they just vacated the judgment and remanded for.
But the reason that that-
Justice Kafker: You again, you're speed talking.
-: They did not overturn the statute in that case.
Justice Kafker: I still can't hear you, what?
-: They did not overturn the statute.
The reason this is a very different statute, though.
This statute is just a threat
to commit any crime against persons or property.
The, if you, even limiting that via jury instructions,
there's a reason we look at statutes
punishing pure speech with special care.
And it's because most of the chilling effect
of not being able to speak your mind
is already achieved by the prospect
of being hauled into court and run through a jury trial
over something you said.
-: So sorry, are you sorry, are you, just to understand,
is your argument that it is insufficient,
as a matter of law,
for this court to say no one can be prosecuted
under our true threats statute
unless the they prove the element
that the Supreme Court has required
pursuant to the First Amendment,
that the Commonwealth has to prove,
and that going forward no one can be prosecuted
under the statute unless this particular mens rea is proved?
And you're saying that we would still
have an ongoing First Amendment violation
here in Massachusetts,
even though this court had declared
that our statute includes that specific intent?
-: That's correct.
Under Counterman, that opinion no longer seems to hold.
They decided several things in that,
that were still up in the air at the time of it.
-: Well, Counterman was a federal US Supreme Court decision
reviewing a state court decision.
So it's not surprising to me
that they wouldn't rewrite a state law,
which they have no power to do.
All they had the power to do
is to say what the First Amendment requires.
But we have actually authority
over what the content of Massachusetts law is.
So I'm trying to understand what is the basis
for your argument that this court cannot say
that going forward, all prosecutions under the statute
have to include a jury instruction
with such and such mens rea going forward.
And you're saying that the statute would still be overbroad
and there'd still be a First Amendment problem?
-: Right, this court has the power to do that,
but it shouldn't, simply because it does nothing
to solve that problem that the Counterman,
in particular Sotomayor's concurrence
talks about so vividly.
-: So is that because people don't know
what the content of our decisions are and so?
-: Well, the jury's never told,
like the jury is not the one
who is supposed to be deciding
whether something is a true threat
subject to prosecution under the Constitution.
That by the time it reaches the jury,
that's already supposed to have been decided.
So they're not, they're the only question.
Well then the,
what you're left with is prosecutorial discretion.
Prosecutorial discretion here, it's not sufficient.
-: I thought your argument was really about the language
of the statute being a, providing a chilling effect
to the public, regardless of whether we read into,
as we must,
a mens rea requirement under the First Amendment.
-: Well, yeah, I mean the statute, on its face,
bars any kind of threat to any persons or property.
That's enormously broad.
A lot of the things that we might say might fall into that
and it would, it would cause people to what, as they say,
steer wide of the danger zone.
But I'd like to talk about dismissal for a moment.
Justice Kafker: You may want
to keep answering that question, before you-
-: I'm sorry, what?
-: [Justice Wendlandt] Yeah, so I guess-
-: I guess I don't understand.
-: We've fixed statutes before because there've been,
if a certain reading
causes them to be unconstitutional, why?
What is it about this statute
that doesn't, we can't save it
by reading it consistent with Counterman?
Attorney Rose: Well, you'd have to read in
an intent requirement
into the language of the statute itself.
-: Which is, you know, as I understand Criminal Law 101,
there's mens rea and actus reus,
and so the mens rea here is risk.
-: It is, I mean, it is my alternate request
that the jury instructions be changed.
It's simply because the statute itself, would not,
would still, would not be what?
Well, when, when what you're trying to,
what you're trying to punish is violent threats
made with a knowing or reckless intent
to place others in, to place someone in fear,
that shouldn't be terribly difficult
to get something that's narrowly tailored enough
to achieve the compelling state interest
of protecting people from coercion
through fear of violent attacks,
without leaving the general public worried
that police are gonna show up at their door
if they say something, anything to anyone
that's remotely interpretable as a threat.
And Justice Sotomayor's concurrence
goes on about this a lot, particularly in online.
Returning to Cruz specifically, this is a text message.
It's not an angry yell delivered right into someone's face
shaking a fist like in Sholley.
It's not a message written in blood
pushed under their door.
If he can be prosecuted, a lot of people can.
"I swear to God, if you touch my kids one more time,
I'll punch you in your face."
-: You're forgetting the prior bad act
that was introduced into evidence of another text message.
Attorney Rose: Mm hmm.
-: "I wish you all die bitch, I'm so hurt, et cetera,
et cetera, F you, I hope you die, bitch."
-: And they were clear that that was not the single utterance
of pure speech that he was being prosecuted for
under a true threats exception.
-: No, but through, I mean,
as far as a directed verdict goes,
so fact that he can be retried,
I think you have an uphill battle
given that this isn't,
given the direct threats to punch her in the face.
-: Well, the jury is free to disbelieve him when he says
I was just telling her- -: Of course.
-: To stay away from my kids
and she, you know, I was angry.
I didn't mean it.
I didn't think she'd she'd take it literally.
Justice Kafker: That's why we have trials.
Of course they can disbelieve him.
-: Well even if they agreed with him completely here,
the jury instructions would've instructed them to convict.
And that's the problem.
-: Well, I think what you, based on the SCOTUS case,
and I think from the question you can infer
that we all think
that there needs to be a mens rea requirement
and the jury instructions were flawed.
-: Going back to Justice Wendlandt's question
about your argument,
do you have an overbreadth argument
that's distinct from the mens rea argument?
Because I understand Mr. Counterman
had raised these First Amendment issues
before Counterman was even decided.
And in fact, this was all briefed to the appeals court
before Counterman was even decided.
So is there, if we, I don't mean to,
we shouldn't lose the forest for the trees here.
Obviously Counterman is very significant
and may need to be addressed,
but is there an additional part
of your constitutional argument
as to why our statute or his prosecution
violates the first Amendment
that is a distinct problem
aside from what we'll call the Counterman problem?
-: Yes, absolutely.
And in fact, my brief to the appeals court
echoed some of the arguments
that Justice Sotomayor's concurrence makes.
Not all of them.
It particularly makes an argument
that all threats are conditional
in the "Give me your wallet or I'll shoot sense."
But that shouldn't make it illegal to warn someone
that you'll use physical force against 'em
if they don't leave you and your family alone.
And that's where the unlawful part comes in.
That it isn't a true threat,
a serious expression of an intent
to commit unlawful violence,
because at least to the speaker,
the conditional violence that they're threatening
could be justified.
If you touch my kids again, I'll punch you in the face.
There are certainly circumstances under which
if someone keeps touching your kids
when you don't want them to,
punching them is allowed. (chuckling)
-: I don't think so.
If someone touches your child,
I mean, if they touch 'em inappropriately, yes,
but if they just touch them, you can punch them in the face?
I just don't know if that's allowed. (chuckling)
-: I mean, this would be a different thing if you were
sending this text to the kid's teacher.
Absolutely.
But this is somebody who she never,
he never expects to encounter her again.
It, I mean, it's hyperbole.
Even with the facts considered in their best light,
the Commonwealth knows
that what he's trying to say to his ex-girlfriend,
is stop hugging my kids or else.
It's not, I'm going to hurt you.
The recklessness standard applies
to every part of what makes something a true threat.
This is going back to Counterman again, but it is relevant,
because the speaker has to have known
that anyone think would think that
what he's threatening is unlawful violence.
And as you point out, Justice Kafker,
there are situations, (chuckling)
where someone, who won't stop touching your kids,
many people would support.
-: Would it include a situation where,
because of the prior relationship,
the kids just ran up to hug her?
-: No, he would, there's no argument
that he would not have been justified in punching her
after this particular, after this encounter.
There is none.
But that's not what he threatened,
that it's not what he said he was going to do.
-: Okay, thank you. -: Thank you.
-: Okay. -: I see I'm out of time.
-: Yes. -: So, I'll rest on my brief.
Thank you.
-: [Justice Wendlandt] Thank you.
Okay, attorney Nado.
-: Thank you, Madam Chief Justice, may it please the court.
Good afternoon, Steven Nado, on behalf of the Commonwealth.
I'm acknowledge that ADA Gaulthier
wrote the brief in the case,
I'm standing in for today.
I hope I'm a suitable replacement.
Justice Kafker: You're a brave man.
-: Our position is that neither Cruz's conviction
nor our threat statute have been invalidated
by the Supreme Court's decision and counter-
-: So where do you read in the mens rea
required by Counterman in the jury instructions?
-: I think that comes twofold.
There is an intentional communication.
Justice Gaziano: Intent to convey.
-: Of an intent to inflict harm.
So as opposed to the Counterman problem
where the mens rea was only asked to the act
of communication itself,
with no reference to what that communication contained,
here, the communication must contain an intent
or an expression of an intention
to inflict a criminal harm or to do criminal violence.
-: But it's, the intent modifies convey.
So wouldn't it be the circumstance where I tell a friend
and the friend discloses a threat to the person
and I may just had told the person in confidence
or I leave a note on someone's window and it falls off.
That's the intentional conveyance of a threat,
not to go on and do the harm.
-: Right, and I think that's why the wording
is expression of an intention to inflict harm,
rather than an intention to actually follow through
on the threatened harm.
I think it's pretty clear
that's not what's required, even under Counterman.
It is the harm that follows from someone being threatened.
So whether you intend to follow through on the harm or not,
is that responsive?
-: No, I think you're out with intent to convey.
That's what I'm-
-: Yeah, yeah, so-
-: (chuckling) Which leads you to element number four, right?
Because you say that element number two
and element number four gets you over to the promised land,
-: Right, right.
-: And I'm saying I don't buy two.
What's your argument on four?
-: Sorry? The order of the-
-: Four is that the defendant made the threat
under circumstances
which could reasonably have caused the person
to whom it was conveyed to fear
that the defendant had both the intention
and the ability to carry out the threat.
Yes, and I apologize.
So I think, well, A,
that largely goes to those situations
as in Watts, for instance,
where it's, you know,
has the speech has an expressive value,
but no reasonable person would take it as a fight,
it's political hyperbole.
Maybe it's a joke, but nonetheless, but I, again,
-: But that's about what the receiver hears
and whether that's reasonable.
That has nothing to do with the mens rea of the defendant.
-: Right, so I think-
-: Okay, so what of these jury instructions
has something to do with the mens rea of the defendant?
-: I think again, it's both
because they have to be read in conjunction,
not separately, but the intention to communicate,
the intention to inflict harm.
I think that double intent adds up to the specific intent.
And I would refer to earlier decisions of this court,
Chow in particular, I think it's at 236,
where the courts articulates its understanding
of truth threats as distinguishing
between words which might literally threaten
and words which are intended to do so.
So I think it's Sholley,
where a direct and explicit threat of violence
delivered directly to the target of that threat.
There's typically very little ambiguity
or doubt about threat,
but where it's communicated via a third person,
there must, this court has interpreted as requiring-
-: The Supreme Court's not caught up in the second
or third person issue.
It's saying there needs to be
subjective understanding of the risk, right?
And we don't have that.
'Cause as Justice Wendlandt points out,
the fourth one is what a reasonable, you know, receiver,
a reasonable person would feel threatened.
But we have to decide whether,
after Countrymen, that it's reckless, right?
We got no way around this, don't we?
I mean, isn't this fold up the tent
and add the instruction and move on?
-: I think certainly if the court wanted to, you know,
tweak the instructions-
-: [Justice Wendlandt] Consistent with the First Amendment.
(justices laughing)
-: Right.
-: [Justice Wendlandt] Right, if we were gonna do that.
-: Yes, but.
-: Let's just say, we'd have to amend the instruction.
So this conviction, let's just say, gets vacated,
because let's assume for the purposes of argument
that it is inconsistent with Counterman.
Can you address the other argument
about the facial challenge to the statute
and the chilling effect of having that statute
in those words without the mens rea,
whether or not we can fix that?
-: Yes.
So I think our threats statute,
which you know, kind of does not define
what the elements are,
those have been supplied by the court, in line
with the Supreme Court's First Amendment jurisprudence
on what qualifies as a true threat.
That statute has not been, have to have been amended
following numerous First Amendment decisions.
I don't think this one is any different.
The court within its power
can read in the necessary mens rea to save it if necessary.
Again, our position is that intent-
-: Is that because we're educating the people
who will enforce the statute,
don't go after them unless you can prove this?
Is that, 'cause the general public is not gonna know
that we've added a fifth element to our instruction.
But I take it that's not the standard for overbreadth
and, right. -: Right.
Correct, correct.
But again, as to that,
and I just wanna make the point again,
where I, again, in Chow again,
this court in its interpretation
of the threats has been attentive again to that distinction,
words that might on their face threaten,
but as opposed to those which are intended to threaten.
But Walters is a case which looks at both federal
and Massachusetts precedent, and at page 425 there,
they acknowledged that the true threat doctrine
applies to, again, direct threats of violence
delivered directly to that person,
but also to words or actions
that place the victim in fear
and events and intent on the part of the speaker
to put the person in fear.
And similarly, in Kerns, at page 653,
the threat element is interpreted to mean
that communication be made to the person
or intended to reach that person indirectly.
But if it's indirect, the threats require the intent
to put the victim in fear.
So again, I think that goes under Sholley,
where it's a direct, explicit threat of violence
directly to that person.
There's little doubt about the intent.
And then once it becomes an indirect
or not a explicit threat,
then there needs to be the additional showing of, you know,
indirect threats require an intent
to put the victim in fear
again, that's at 653 in Kerns.
So under, again, sort of those principles taken together,
I think our statute, as Justice Sotomayor
in her concurrence noted,
reflect a common sense understanding
that threatening someone is an intentional act.
I think that's what this court has done
with Section 2 historically.
So I don't think Counterman affects that.
If there are no additional questions, I would.