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SJC-13595,
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Commonwealth versus Arickson Cruz.
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Good afternoon, and may it please the court.
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Cruz's conviction can't stand
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for the same reason the defendant in Counterman's couldn't.
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Oh, I'm sorry. I forgot to introduce myself.
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My name is Rachel Rose,
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arguing for defendant-appellate, Eric Cruz.
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Hey, can you,
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I remember from last time you spoke,
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could you slow down, okay?
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Because you're speaking through a mask
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and you're talking really fast.
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This time I will get it right.
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Okay. (chuckling)
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Cruz's jury instructions only asked
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what a reasonable person might think of what he said.
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Not whether he, the speaker,
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was at least consciously disregarding a substantial risk
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that his communication would be viewed
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as a serious threat of violence.
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The Supreme Court is clear that the Constitution
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doesn't allow punishment of speech
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that's only unintentionally
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or negligently threatening,
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even if it contains outwardly violent language.
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That's all that the Commonwealth proved this was.
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So it needs to be reversed.
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You can't substitute a per se rule
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for the determination of intent
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that the Constitution requires,
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or a lot of the angry rhetoric
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and even jokes that we see all the time becomes illegal
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and subject to prosecution
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as soon as they're communicated to a particular person
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or the listener thinks
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you're talking about someone in particular.
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That's an unbelievably draconian state of affairs
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and it's completely inconsistent with the First Amendment.
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Okay, so just to clarify,
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the missing element here,
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we have, there was a four-part instruction,
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but we have one missing piece to that instruction, right?
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Which is that the state must show
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the defendant consciously disregard a substantial risk
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that his communication
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would be viewed as threatening violence, right?
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Yes, that's right.
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So if that had been in the instruction,
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we'd be, that instruction would be fine, correct?
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That would be fine.
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The rest of the instruction,
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and he's gonna stand up and argue
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that other parts of the instruction,
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particularly one and two maybe,
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that, excuse me, that the defendant intended
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that his threat be conveyed to a particular person.
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And third, that the injury that was threatened,
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if carried out, would four,
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it's two and four, I think he's gonna argue,
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make up for that.
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Four, that the defendant made the threat under circumstances
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which could reasonably have caused the person to
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if it was conveyed
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to fear that the defendant had both the intention
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and the ability to carry out the threat, right?
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That's correct.
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So tell me why he's wrong, okay?
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What, why oh, why he's wrong?
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Why the Commonwealth is wrong, okay?
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Well, what the government is asking for
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is basically that if you say any outwardly violent words,
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then that's an expression of an intent
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and anyone can reasonably take it that way.
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Yes, and that's true.
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Anytime someone says something,
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that's on its face is a violent threat,
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there's always somebody, even a reasonable person,
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who could take it, that you're speaking seriously.
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But the Supreme Court is clear
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that that is not good enough to protect our freedoms
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under the First Amendment.
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That we have the right to make these sort of jokes,
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that we have the right to make this sort of angry rhetoric,
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if we are only unintentionally
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or negligently saying something,
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unless we really know
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that that is how it's going to be received when we say it.
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That's something that the government can't punish.
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Okay, but let's just get into the weeds here a little bit.
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So the defendant intended that this threat
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be conveyed to the victim, okay?
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And then the defendant made the threat
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under circumstances which could reasonably
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have caused the person to whom it was conveyed
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to fear that the defendant had both the intent.
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So I see that there may be a missing piece here,
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but it's pretty close, right?
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You're intending the threat to that person
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and the threat that you conveyed
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reasonably could have caused the person
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to made the threat under circumstances
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which reasonably could have caused the person
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who was conveyed to fear that defendant
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had both the intention and the ability
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to carry out the threat, right?
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Well, it's not that,
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I mean, it actually is quite different.
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It's the difference between, in plain terms,
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I can see how it could be taken that way,
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and anyone should have known
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that's how it would be received.
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And there's actually, there's a lot of jokes.
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There's a lot of political rhetoric,
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there's a lot of discussions that go on
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to a particular person.
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We're not dealing with jokes and political rhetoric.
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We're dealing with, "If you touch my kids again,
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I'm going to," I can't remember, what's the end of it?
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"I'm gonna-"
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All right, "If you touch my kids again,
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I'll punch you in the face."
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Okay, so we have,
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there's not a lot of ambiguity there, right?
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Yes, the question is whether it was intended
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to place certain fear of an illegal act
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or whether it was intended to tell her
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to leave my kids alone.
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You're talking about the absence of a mens rea requirement
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of at least recklessness.
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And here the statute or the elements as instructed
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have the reasonable person objective standard, correct?
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That's correct.
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And the Counterman decision has said,
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I mean almost in exactly those words,
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the instruction-
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Why is the statute vague?
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Why can't we just fix it?
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Well, the statute isn't vague so much
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as it's facially overbroad.
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Well, why can't we fix it?
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(chuckling) You'd have to fix the statute itself,
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essentially the jury instructions-
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We'd have to give jury instructions
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that conform to the new, new SCOTUS case, right?
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Well see what was done last time,
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was in Commonwealth v Sholley,
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Counterman says that the kludge of redefining threat
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that was used last time isn't good enough.
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They said "If courts were at liberty
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to redefine what counts as a threat,
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this would achieve the same results
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as creating new categories of unprotected speech."
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Well, wouldn't we say these jury instructions are flawed?
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The objective standard's out,
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put in a recklessness standard.
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If you revise the jury instructions, yeah.
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Only prosecutions of true threats would reach conviction.
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Right.
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But that does nothing to
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solve the chilling effect problem
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that the Counterman court is clear
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is why they made this ruling.
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So for a statute punishing only pure speech on its face,
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275 Section 2 covers a lot of ground
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that falls outside of any of the exceptions
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to the First Amendment.
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Only violent threats are true threats.
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But if you read the language of the statute,
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combined with the instructions that Cruz's jury received,
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that would've allowed for a conviction
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over a threat to vandalize a neighbor's offensive yard sign.
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You can prosecute for doing that,
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but you can't prosecute for saying it.
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Whether his text message was intended as a real threat
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or just angry hyperbole
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wasn't something that his jury was ever asked to decide.
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But it was the dividing line of illegality
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and the only thing at issue in the case.
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Remind me, did the Supreme Court rewrite the statute
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in its case or did it just redo the jury instructions?
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It struck it down, I think.
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Yeah, but in any case,
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that's not a direct, it's not a direct corollary,
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the statute in that case,
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'cause it's a stalking statute.
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Can we answer the question?
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If you know the answer, it would be nice to tell us.
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I used to.
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Because I see your point about chilling effect.
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Juries, I mean, when you don't know
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what the jury instructions are
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when you're threatening the victim.
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Right, the jury instructions.
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But I'm trying to figure out what the Supreme Court
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was actually said.
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Well, in terms of overturning, well, the,
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the Virginia statute is not, can't really be compared to,
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I mean that section of it can, but let's see.
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That's important.
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'Cause if they said,
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"Okay, if you narrow it through instructions
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or interpretation," that gets away
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that they're comfortable with the chilling effect
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that you're not comfortable with.
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No, they just vacated the judgment and remanded for.
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But the reason that that-
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You again, you're speed talking.
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They did not overturn the statute in that case.
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I still can't hear you, what?
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They did not overturn the statute.
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The reason this is a very different statute, though.
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This statute is just a threat
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to commit any crime against persons or property.
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The, if you, even limiting that via jury instructions,
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there's a reason we look at statutes
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punishing pure speech with special care.
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And it's because most of the chilling effect
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of not being able to speak your mind
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is already achieved by the prospect
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of being hauled into court and run through a jury trial
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over something you said.
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So sorry, are you sorry, are you, just to understand,
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is your argument that it is insufficient,
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as a matter of law,
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for this court to say no one can be prosecuted
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under our true threats statute
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unless the they prove the element
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that the Supreme Court has required
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pursuant to the First Amendment,
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that the Commonwealth has to prove,
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and that going forward no one can be prosecuted
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under the statute unless this particular mens rea is proved?
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And you're saying that we would still
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have an ongoing First Amendment violation
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here in Massachusetts,
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even though this court had declared
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that our statute includes that specific intent?
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That's correct.
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Under Counterman, that opinion no longer seems to hold.
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They decided several things in that,
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that were still up in the air at the time of it.
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Well, Counterman was a federal US Supreme Court decision
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reviewing a state court decision.
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So it's not surprising to me
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that they wouldn't rewrite a state law,
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which they have no power to do.
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All they had the power to do
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is to say what the First Amendment requires.
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But we have actually authority
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over what the content of Massachusetts law is.
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So I'm trying to understand what is the basis
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for your argument that this court cannot say
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that going forward, all prosecutions under the statute
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have to include a jury instruction
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with such and such mens rea going forward.
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And you're saying that the statute would still be overbroad
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and there'd still be a First Amendment problem?
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Right, this court has the power to do that,
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but it shouldn't, simply because it does nothing
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to solve that problem that the Counterman,
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in particular Sotomayor's concurrence
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talks about so vividly.
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So is that because people don't know
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what the content of our decisions are and so?
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Well, the jury's never told,
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like the jury is not the one
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who is supposed to be deciding
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whether something is a true threat
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00:09:38.730 --> 00:09:40.680
subject to prosecution under the Constitution.
271
00:09:40.680 --> 00:09:41.940
That by the time it reaches the jury,
272
00:09:41.940 --> 00:09:43.980
that's already supposed to have been decided.
273
00:09:43.980 --> 00:09:46.470
So they're not, they're the only question.
274
00:09:46.470 --> 00:09:49.920
Well then the,
275
00:09:49.920 --> 00:09:52.920
what you're left with is prosecutorial discretion.
276
00:09:52.920 --> 00:09:56.826
Prosecutorial discretion here, it's not sufficient.
277
00:09:56.826 --> 00:10:01.320
I thought your argument was really about the language
278
00:10:01.320 --> 00:10:06.320
of the statute being a, providing a chilling effect
279
00:10:06.870 --> 00:10:10.110
to the public, regardless of whether we read into,
280
00:10:10.110 --> 00:10:11.460
as we must,
281
00:10:11.460 --> 00:10:14.310
a mens rea requirement under the First Amendment.
282
00:10:14.310 --> 00:10:16.050
Well, yeah, I mean the statute, on its face,
283
00:10:16.050 --> 00:10:18.810
bars any kind of threat to any persons or property.
284
00:10:18.810 --> 00:10:20.850
That's enormously broad.
285
00:10:20.850 --> 00:10:23.640
A lot of the things that we might say might fall into that
286
00:10:23.640 --> 00:10:26.130
and it would, it would cause people to what, as they say,
287
00:10:26.130 --> 00:10:28.323
steer wide of the danger zone.
288
00:10:29.730 --> 00:10:33.030
But I'd like to talk about dismissal for a moment.
289
00:10:33.030 --> 00:10:34.465
You may want
290
00:10:34.465 --> 00:10:36.870
to keep answering that question, before you-
291
00:10:36.870 --> 00:10:38.221
I'm sorry, what?
292
00:10:38.221 --> 00:10:40.114
[Justice Wendlandt] Yeah, so I guess-
293
00:10:40.114 --> 00:10:41.730
I guess I don't understand.
294
00:10:41.730 --> 00:10:44.910
We've fixed statutes before because there've been,
295
00:10:44.910 --> 00:10:46.290
if a certain reading
296
00:10:46.290 --> 00:10:49.680
causes them to be unconstitutional, why?
297
00:10:49.680 --> 00:10:51.660
What is it about this statute
298
00:10:51.660 --> 00:10:54.870
that doesn't, we can't save it
299
00:10:54.870 --> 00:10:57.660
by reading it consistent with Counterman?
300
00:10:57.660 --> 00:10:58.860
Well, you'd have to read in
301
00:10:58.860 --> 00:10:59.790
an intent requirement
302
00:10:59.790 --> 00:11:01.230
into the language of the statute itself.
303
00:11:01.230 --> 00:11:04.500
Which is, you know, as I understand Criminal Law 101,
304
00:11:04.500 --> 00:11:06.450
there's mens rea and actus reus,
305
00:11:06.450 --> 00:11:10.495
and so the mens rea here is risk.
306
00:11:10.495 --> 00:11:12.540
It is, I mean, it is my alternate request
307
00:11:12.540 --> 00:11:14.040
that the jury instructions be changed.
308
00:11:14.040 --> 00:11:16.950
It's simply because the statute itself, would not,
309
00:11:16.950 --> 00:11:18.859
would still, would not be what?
310
00:11:18.859 --> 00:11:20.123
Well, when, when what you're trying to,
311
00:11:21.747 --> 00:11:22.580
what you're trying to punish is violent threats
312
00:11:22.580 --> 00:11:23.970
made with a knowing or reckless intent
313
00:11:23.970 --> 00:11:26.640
to place others in, to place someone in fear,
314
00:11:26.640 --> 00:11:28.440
that shouldn't be terribly difficult
315
00:11:29.580 --> 00:11:31.230
to get something that's narrowly tailored enough
316
00:11:31.230 --> 00:11:32.760
to achieve the compelling state interest
317
00:11:32.760 --> 00:11:33.990
of protecting people from coercion
318
00:11:33.990 --> 00:11:35.820
through fear of violent attacks,
319
00:11:35.820 --> 00:11:37.350
without leaving the general public worried
320
00:11:37.350 --> 00:11:38.760
that police are gonna show up at their door
321
00:11:38.760 --> 00:11:40.800
if they say something, anything to anyone
322
00:11:40.800 --> 00:11:42.540
that's remotely interpretable as a threat.
323
00:11:42.540 --> 00:11:43.950
And Justice Sotomayor's concurrence
324
00:11:43.950 --> 00:11:46.170
goes on about this a lot, particularly in online.
325
00:11:46.170 --> 00:11:48.750
Returning to Cruz specifically, this is a text message.
326
00:11:48.750 --> 00:11:50.820
It's not an angry yell delivered right into someone's face
327
00:11:50.820 --> 00:11:52.020
shaking a fist like in Sholley.
328
00:11:52.020 --> 00:11:53.190
It's not a message written in blood
329
00:11:53.190 --> 00:11:55.200
pushed under their door.
330
00:11:55.200 --> 00:11:56.887
If he can be prosecuted, a lot of people can.
331
00:11:56.887 --> 00:11:58.830
"I swear to God, if you touch my kids one more time,
332
00:11:58.830 --> 00:12:00.300
I'll punch you in your face."
333
00:12:00.300 --> 00:12:01.474
You're forgetting the prior bad act
334
00:12:01.474 --> 00:12:05.103
that was introduced into evidence of another text message.
335
00:12:05.970 --> 00:12:06.803
Mm hmm.
336
00:12:06.803 --> 00:12:10.110
"I wish you all die bitch, I'm so hurt, et cetera,
337
00:12:10.110 --> 00:12:12.870
et cetera, F you, I hope you die, bitch."
338
00:12:12.870 --> 00:12:14.820
And they were clear that that was not the single utterance
339
00:12:14.820 --> 00:12:16.650
of pure speech that he was being prosecuted for
340
00:12:16.650 --> 00:12:17.640
under a true threats exception.
341
00:12:17.640 --> 00:12:19.170
No, but through, I mean,
342
00:12:19.170 --> 00:12:21.900
as far as a directed verdict goes,
343
00:12:21.900 --> 00:12:23.610
so fact that he can be retried,
344
00:12:23.610 --> 00:12:25.580
I think you have an uphill battle
345
00:12:25.580 --> 00:12:28.110
given that this isn't,
346
00:12:28.110 --> 00:12:31.230
given the direct threats to punch her in the face.
347
00:12:31.230 --> 00:12:33.540
Well, the jury is free to disbelieve him when he says
348
00:12:33.540 --> 00:12:34.373
I was just telling her-
Of course.
349
00:12:34.373 --> 00:12:35.670
To stay away from my kids
350
00:12:35.670 --> 00:12:37.050
and she, you know, I was angry.
351
00:12:37.050 --> 00:12:37.883
I didn't mean it.
352
00:12:37.883 --> 00:12:39.240
I didn't think she'd she'd take it literally.
353
00:12:39.240 --> 00:12:40.260
That's why we have trials.
354
00:12:40.260 --> 00:12:41.460
Of course they can disbelieve him.
355
00:12:41.460 --> 00:12:43.830
Well even if they agreed with him completely here,
356
00:12:43.830 --> 00:12:46.734
the jury instructions would've instructed them to convict.
357
00:12:46.734 --> 00:12:47.567
And that's the problem.
358
00:12:47.567 --> 00:12:49.827
Well, I think what you, based on the SCOTUS case,
359
00:12:49.827 --> 00:12:51.750
and I think from the question you can infer
360
00:12:51.750 --> 00:12:52.583
that we all think
361
00:12:52.583 --> 00:12:55.681
that there needs to be a mens rea requirement
362
00:12:55.681 --> 00:12:58.473
and the jury instructions were flawed.
363
00:13:00.900 --> 00:13:03.433
Going back to Justice Wendlandt's question
364
00:13:03.433 --> 00:13:05.057
about your argument,
365
00:13:05.057 --> 00:13:07.500
do you have an overbreadth argument
366
00:13:07.500 --> 00:13:09.813
that's distinct from the mens rea argument?
367
00:13:12.420 --> 00:13:13.950
Because I understand Mr. Counterman
368
00:13:13.950 --> 00:13:15.630
had raised these First Amendment issues
369
00:13:15.630 --> 00:13:18.060
before Counterman was even decided.
370
00:13:18.060 --> 00:13:20.220
And in fact, this was all briefed to the appeals court
371
00:13:20.220 --> 00:13:22.020
before Counterman was even decided.
372
00:13:22.020 --> 00:13:25.890
So is there, if we, I don't mean to,
373
00:13:25.890 --> 00:13:28.740
we shouldn't lose the forest for the trees here.
374
00:13:28.740 --> 00:13:30.537
Obviously Counterman is very significant
375
00:13:30.537 --> 00:13:31.740
and may need to be addressed,
376
00:13:31.740 --> 00:13:33.870
but is there an additional part
377
00:13:33.870 --> 00:13:34.920
of your constitutional argument
378
00:13:34.920 --> 00:13:38.100
as to why our statute or his prosecution
379
00:13:38.100 --> 00:13:39.480
violates the first Amendment
380
00:13:39.480 --> 00:13:42.150
that is a distinct problem
381
00:13:42.150 --> 00:13:44.070
aside from what we'll call the Counterman problem?
382
00:13:44.070 --> 00:13:44.940
Yes, absolutely.
383
00:13:44.940 --> 00:13:46.590
And in fact, my brief to the appeals court
384
00:13:46.590 --> 00:13:47.910
echoed some of the arguments
385
00:13:47.910 --> 00:13:50.100
that Justice Sotomayor's concurrence makes.
386
00:13:50.100 --> 00:13:50.933
Not all of them.
387
00:13:50.933 --> 00:13:52.020
It particularly makes an argument
388
00:13:52.020 --> 00:13:53.490
that all threats are conditional
389
00:13:53.490 --> 00:13:55.260
in the "Give me your wallet or I'll shoot sense."
390
00:13:55.260 --> 00:13:57.930
But that shouldn't make it illegal to warn someone
391
00:13:57.930 --> 00:13:59.400
that you'll use physical force against 'em
392
00:13:59.400 --> 00:14:01.080
if they don't leave you and your family alone.
393
00:14:01.080 --> 00:14:03.390
And that's where the unlawful part comes in.
394
00:14:03.390 --> 00:14:04.830
That it isn't a true threat,
395
00:14:04.830 --> 00:14:06.000
a serious expression of an intent
396
00:14:06.000 --> 00:14:07.410
to commit unlawful violence,
397
00:14:07.410 --> 00:14:08.460
because at least to the speaker,
398
00:14:08.460 --> 00:14:10.080
the conditional violence that they're threatening
399
00:14:10.080 --> 00:14:11.670
could be justified.
400
00:14:11.670 --> 00:14:14.070
If you touch my kids again, I'll punch you in the face.
401
00:14:14.070 --> 00:14:16.620
There are certainly circumstances under which
402
00:14:16.620 --> 00:14:17.880
if someone keeps touching your kids
403
00:14:17.880 --> 00:14:18.990
when you don't want them to,
404
00:14:18.990 --> 00:14:20.790
punching them is allowed. (chuckling)
405
00:14:20.790 --> 00:14:21.963
I don't think so.
406
00:14:23.160 --> 00:14:26.370
If someone touches your child,
407
00:14:26.370 --> 00:14:28.440
I mean, if they touch 'em inappropriately, yes,
408
00:14:28.440 --> 00:14:30.780
but if they just touch them, you can punch them in the face?
409
00:14:30.780 --> 00:14:33.240
I just don't know if that's allowed. (chuckling)
410
00:14:33.240 --> 00:14:34.650
I mean, this would be a different thing if you were
411
00:14:34.650 --> 00:14:36.270
sending this text to the kid's teacher.
412
00:14:36.270 --> 00:14:37.290
Absolutely.
413
00:14:37.290 --> 00:14:38.550
But this is somebody who she never,
414
00:14:38.550 --> 00:14:40.770
he never expects to encounter her again.
415
00:14:40.770 --> 00:14:43.470
It, I mean, it's hyperbole.
416
00:14:43.470 --> 00:14:45.270
Even with the facts considered in their best light,
417
00:14:45.270 --> 00:14:46.140
the Commonwealth knows
418
00:14:46.140 --> 00:14:47.937
that what he's trying to say to his ex-girlfriend,
419
00:14:47.937 --> 00:14:50.159
is stop hugging my kids or else.
420
00:14:50.159 --> 00:14:52.143
It's not, I'm going to hurt you.
421
00:14:53.100 --> 00:14:54.510
The recklessness standard applies
422
00:14:54.510 --> 00:14:56.220
to every part of what makes something a true threat.
423
00:14:56.220 --> 00:14:58.830
This is going back to Counterman again, but it is relevant,
424
00:14:58.830 --> 00:15:00.240
because the speaker has to have known
425
00:15:00.240 --> 00:15:01.740
that anyone think would think that
426
00:15:01.740 --> 00:15:03.420
what he's threatening is unlawful violence.
427
00:15:03.420 --> 00:15:05.820
And as you point out, Justice Kafker,
428
00:15:05.820 --> 00:15:07.770
there are situations, (chuckling)
429
00:15:07.770 --> 00:15:10.590
where someone, who won't stop touching your kids,
430
00:15:10.590 --> 00:15:11.693
many people would support.
431
00:15:11.693 --> 00:15:14.640
Would it include a situation where,
432
00:15:14.640 --> 00:15:16.410
because of the prior relationship,
433
00:15:16.410 --> 00:15:18.363
the kids just ran up to hug her?
434
00:15:19.290 --> 00:15:21.180
No, he would, there's no argument
435
00:15:21.180 --> 00:15:23.713
that he would not have been justified in punching her
436
00:15:23.713 --> 00:15:25.890
after this particular, after this encounter.
437
00:15:25.890 --> 00:15:26.723
There is none.
438
00:15:26.723 --> 00:15:27.556
But that's not what he threatened,
439
00:15:27.556 --> 00:15:28.942
that it's not what he said he was going to do.
440
00:15:28.942 --> 00:15:31.088
Okay, thank you.
Thank you.
441
00:15:31.088 --> 00:15:31.921
Okay.
I see I'm out of time.
442
00:15:31.921 --> 00:15:33.156
Yes.
So, I'll rest on my brief.
443
00:15:33.156 --> 00:15:33.989
Thank you.
444
00:15:33.989 --> 00:15:35.490
[Justice Wendlandt] Thank you.
445
00:15:35.490 --> 00:15:37.173
Okay, attorney Nado.
446
00:15:38.160 --> 00:15:40.140
Thank you, Madam Chief Justice, may it please the court.
447
00:15:40.140 --> 00:15:42.810
Good afternoon, Steven Nado, on behalf of the Commonwealth.
448
00:15:42.810 --> 00:15:45.300
I'm acknowledge that ADA Gaulthier
449
00:15:45.300 --> 00:15:46.260
wrote the brief in the case,
450
00:15:46.260 --> 00:15:47.460
I'm standing in for today.
451
00:15:47.460 --> 00:15:49.260
I hope I'm a suitable replacement.
452
00:15:49.260 --> 00:15:51.067
You're a brave man.
453
00:15:51.067 --> 00:15:55.860
Our position is that neither Cruz's conviction
454
00:15:55.860 --> 00:15:57.980
nor our threat statute have been invalidated
455
00:15:57.980 --> 00:16:00.510
by the Supreme Court's decision and counter-
456
00:16:00.510 --> 00:16:03.330
So where do you read in the mens rea
457
00:16:03.330 --> 00:16:07.050
required by Counterman in the jury instructions?
458
00:16:07.050 --> 00:16:09.210
I think that comes twofold.
459
00:16:09.210 --> 00:16:11.400
There is an intentional communication.
460
00:16:11.400 --> 00:16:13.112
Intent to convey.
461
00:16:13.112 --> 00:16:16.110
Of an intent to inflict harm.
462
00:16:16.110 --> 00:16:19.050
So as opposed to the Counterman problem
463
00:16:19.050 --> 00:16:22.050
where the mens rea was only asked to the act
464
00:16:22.050 --> 00:16:23.430
of communication itself,
465
00:16:23.430 --> 00:16:27.150
with no reference to what that communication contained,
466
00:16:27.150 --> 00:16:31.470
here, the communication must contain an intent
467
00:16:31.470 --> 00:16:33.210
or an expression of an intention
468
00:16:33.210 --> 00:16:35.647
to inflict a criminal harm or to do criminal violence.
469
00:16:35.647 --> 00:16:38.261
But it's, the intent modifies convey.
470
00:16:38.261 --> 00:16:43.260
So wouldn't it be the circumstance where I tell a friend
471
00:16:43.260 --> 00:16:45.684
and the friend discloses a threat to the person
472
00:16:45.684 --> 00:16:48.900
and I may just had told the person in confidence
473
00:16:48.900 --> 00:16:52.530
or I leave a note on someone's window and it falls off.
474
00:16:52.530 --> 00:16:55.950
That's the intentional conveyance of a threat,
475
00:16:55.950 --> 00:16:59.790
not to go on and do the harm.
476
00:16:59.790 --> 00:17:01.740
Right, and I think that's why the wording
477
00:17:01.740 --> 00:17:04.500
is expression of an intention to inflict harm,
478
00:17:04.500 --> 00:17:07.830
rather than an intention to actually follow through
479
00:17:07.830 --> 00:17:08.880
on the threatened harm.
480
00:17:08.880 --> 00:17:10.140
I think it's pretty clear
481
00:17:10.140 --> 00:17:12.170
that's not what's required, even under Counterman.
482
00:17:12.170 --> 00:17:16.320
It is the harm that follows from someone being threatened.
483
00:17:16.320 --> 00:17:19.860
So whether you intend to follow through on the harm or not,
484
00:17:19.860 --> 00:17:21.210
is that responsive?
485
00:17:21.210 --> 00:17:23.940
No, I think you're out with intent to convey.
486
00:17:23.940 --> 00:17:25.140
That's what I'm-
487
00:17:25.140 --> 00:17:26.476
Yeah, yeah, so-
488
00:17:26.476 --> 00:17:30.753
(chuckling) Which leads you to element number four, right?
489
00:17:34.320 --> 00:17:36.210
Because you say that element number two
490
00:17:36.210 --> 00:17:39.300
and element number four gets you over to the promised land,
491
00:17:39.300 --> 00:17:40.133
Right, right.
492
00:17:40.133 --> 00:17:42.510
And I'm saying I don't buy two.
493
00:17:42.510 --> 00:17:43.960
What's your argument on four?
494
00:17:46.350 --> 00:17:50.150
Sorry? The order of the-
495
00:17:50.150 --> 00:17:53.430
Four is that the defendant made the threat
496
00:17:53.430 --> 00:17:54.780
under circumstances
497
00:17:54.780 --> 00:17:56.700
which could reasonably have caused the person
498
00:17:56.700 --> 00:17:58.050
to whom it was conveyed to fear
499
00:17:58.050 --> 00:18:00.000
that the defendant had both the intention
500
00:18:00.000 --> 00:18:00.870
and the ability to carry out the threat.
501
00:18:00.870 --> 00:18:02.580
Yes, and I apologize.
502
00:18:02.580 --> 00:18:05.850
So I think, well, A,
503
00:18:05.850 --> 00:18:09.690
that largely goes to those situations
504
00:18:09.690 --> 00:18:12.330
as in Watts, for instance,
505
00:18:12.330 --> 00:18:14.340
where it's, you know,
506
00:18:14.340 --> 00:18:16.744
has the speech has an expressive value,
507
00:18:16.744 --> 00:18:18.870
but no reasonable person would take it as a fight,
508
00:18:18.870 --> 00:18:20.070
it's political hyperbole.
509
00:18:20.070 --> 00:18:24.087
Maybe it's a joke, but nonetheless, but I, again,
510
00:18:24.087 --> 00:18:26.395
But that's about what the receiver hears
511
00:18:26.395 --> 00:18:28.140
and whether that's reasonable.
512
00:18:28.140 --> 00:18:31.040
That has nothing to do with the mens rea of the defendant.
513
00:18:32.010 --> 00:18:32.908
Right, so I think-
514
00:18:32.908 --> 00:18:35.370
Okay, so what of these jury instructions
515
00:18:35.370 --> 00:18:39.090
has something to do with the mens rea of the defendant?
516
00:18:39.090 --> 00:18:41.010
I think again, it's both
517
00:18:41.010 --> 00:18:42.960
because they have to be read in conjunction,
518
00:18:42.960 --> 00:18:45.450
not separately, but the intention to communicate,
519
00:18:45.450 --> 00:18:48.030
the intention to inflict harm.
520
00:18:48.030 --> 00:18:51.540
I think that double intent adds up to the specific intent.
521
00:18:51.540 --> 00:18:55.814
And I would refer to earlier decisions of this court,
522
00:18:55.814 --> 00:19:00.090
Chow in particular, I think it's at 236,
523
00:19:00.090 --> 00:19:02.910
where the courts articulates its understanding
524
00:19:02.910 --> 00:19:05.460
of truth threats as distinguishing
525
00:19:05.460 --> 00:19:08.280
between words which might literally threaten
526
00:19:08.280 --> 00:19:11.130
and words which are intended to do so.
527
00:19:11.130 --> 00:19:13.200
So I think it's Sholley,
528
00:19:13.200 --> 00:19:17.550
where a direct and explicit threat of violence
529
00:19:17.550 --> 00:19:19.740
delivered directly to the target of that threat.
530
00:19:19.740 --> 00:19:22.380
There's typically very little ambiguity
531
00:19:22.380 --> 00:19:23.970
or doubt about threat,
532
00:19:23.970 --> 00:19:27.870
but where it's communicated via a third person,
533
00:19:27.870 --> 00:19:30.466
there must, this court has interpreted as requiring-
534
00:19:30.466 --> 00:19:34.230
The Supreme Court's not caught up in the second
535
00:19:34.230 --> 00:19:35.340
or third person issue.
536
00:19:35.340 --> 00:19:38.230
It's saying there needs to be
537
00:19:39.720 --> 00:19:43.670
subjective understanding of the risk, right?
538
00:19:43.670 --> 00:19:45.377
And we don't have that.
539
00:19:45.377 --> 00:19:47.160
'Cause as Justice Wendlandt points out,
540
00:19:47.160 --> 00:19:51.777
the fourth one is what a reasonable, you know, receiver,
541
00:19:52.710 --> 00:19:54.360
a reasonable person would feel threatened.
542
00:19:54.360 --> 00:19:56.163
But we have to decide whether,
543
00:19:57.090 --> 00:20:00.240
after Countrymen, that it's reckless, right?
544
00:20:00.240 --> 00:20:01.815
We got no way around this, don't we?
545
00:20:01.815 --> 00:20:04.710
I mean, isn't this fold up the tent
546
00:20:04.710 --> 00:20:07.708
and add the instruction and move on?
547
00:20:07.708 --> 00:20:12.708
I think certainly if the court wanted to, you know,
548
00:20:12.780 --> 00:20:14.433
tweak the instructions-
549
00:20:14.433 --> 00:20:16.278
[Justice Wendlandt] Consistent with the First Amendment.
550
00:20:16.278 --> 00:20:17.276
(justices laughing)
551
00:20:17.276 --> 00:20:18.235
Right.
552
00:20:18.235 --> 00:20:19.950
[Justice Wendlandt] Right, if we were gonna do that.
553
00:20:19.950 --> 00:20:20.783
Yes, but.
554
00:20:20.783 --> 00:20:23.408
Let's just say, we'd have to amend the instruction.
555
00:20:23.408 --> 00:20:25.914
So this conviction, let's just say, gets vacated,
556
00:20:25.914 --> 00:20:30.540
because let's assume for the purposes of argument
557
00:20:30.540 --> 00:20:33.663
that it is inconsistent with Counterman.
558
00:20:35.280 --> 00:20:37.620
Can you address the other argument
559
00:20:37.620 --> 00:20:40.139
about the facial challenge to the statute
560
00:20:40.139 --> 00:20:44.100
and the chilling effect of having that statute
561
00:20:44.100 --> 00:20:46.740
in those words without the mens rea,
562
00:20:46.740 --> 00:20:48.510
whether or not we can fix that?
563
00:20:48.510 --> 00:20:49.343
Yes.
564
00:20:49.343 --> 00:20:51.930
So I think our threats statute,
565
00:20:51.930 --> 00:20:54.030
which you know, kind of does not define
566
00:20:54.030 --> 00:20:55.050
what the elements are,
567
00:20:55.050 --> 00:20:58.870
those have been supplied by the court, in line
568
00:21:01.500 --> 00:21:04.260
with the Supreme Court's First Amendment jurisprudence
569
00:21:04.260 --> 00:21:06.901
on what qualifies as a true threat.
570
00:21:06.901 --> 00:21:11.520
That statute has not been, have to have been amended
571
00:21:11.520 --> 00:21:13.740
following numerous First Amendment decisions.
572
00:21:13.740 --> 00:21:15.300
I don't think this one is any different.
573
00:21:15.300 --> 00:21:16.410
The court within its power
574
00:21:16.410 --> 00:21:21.410
can read in the necessary mens rea to save it if necessary.
575
00:21:21.690 --> 00:21:25.260
Again, our position is that intent-
576
00:21:25.260 --> 00:21:27.390
Is that because we're educating the people
577
00:21:27.390 --> 00:21:29.610
who will enforce the statute,
578
00:21:29.610 --> 00:21:33.660
don't go after them unless you can prove this?
579
00:21:33.660 --> 00:21:36.690
Is that, 'cause the general public is not gonna know
580
00:21:36.690 --> 00:21:39.720
that we've added a fifth element to our instruction.
581
00:21:39.720 --> 00:21:42.930
But I take it that's not the standard for overbreadth
582
00:21:42.930 --> 00:21:45.055
and, right.
Right.
583
00:21:45.055 --> 00:21:46.705
Correct, correct.
584
00:21:46.705 --> 00:21:51.705
But again, as to that,
585
00:21:51.720 --> 00:21:54.090
and I just wanna make the point again,
586
00:21:54.090 --> 00:21:56.580
where I, again, in Chow again,
587
00:21:56.580 --> 00:21:58.710
this court in its interpretation
588
00:21:58.710 --> 00:22:02.280
of the threats has been attentive again to that distinction,
589
00:22:02.280 --> 00:22:04.830
words that might on their face threaten,
590
00:22:04.830 --> 00:22:09.262
but as opposed to those which are intended to threaten.
591
00:22:09.262 --> 00:22:14.040
But Walters is a case which looks at both federal
592
00:22:14.040 --> 00:22:19.040
and Massachusetts precedent, and at page 425 there,
593
00:22:19.380 --> 00:22:21.960
they acknowledged that the true threat doctrine
594
00:22:21.960 --> 00:22:24.750
applies to, again, direct threats of violence
595
00:22:24.750 --> 00:22:26.730
delivered directly to that person,
596
00:22:26.730 --> 00:22:28.530
but also to words or actions
597
00:22:28.530 --> 00:22:30.134
that place the victim in fear
598
00:22:30.134 --> 00:22:33.900
and events and intent on the part of the speaker
599
00:22:33.900 --> 00:22:35.943
to put the person in fear.
600
00:22:37.590 --> 00:22:42.590
And similarly, in Kerns, at page 653,
601
00:22:43.380 --> 00:22:45.150
the threat element is interpreted to mean
602
00:22:45.150 --> 00:22:48.240
that communication be made to the person
603
00:22:48.240 --> 00:22:51.723
or intended to reach that person indirectly.
604
00:22:52.890 --> 00:22:56.160
But if it's indirect, the threats require the intent
605
00:22:56.160 --> 00:22:56.993
to put the victim in fear.
606
00:22:56.993 --> 00:22:59.520
So again, I think that goes under Sholley,
607
00:22:59.520 --> 00:23:02.220
where it's a direct, explicit threat of violence
608
00:23:02.220 --> 00:23:03.360
directly to that person.
609
00:23:03.360 --> 00:23:07.080
There's little doubt about the intent.
610
00:23:07.080 --> 00:23:09.060
And then once it becomes an indirect
611
00:23:09.060 --> 00:23:12.240
or not a explicit threat,
612
00:23:12.240 --> 00:23:15.990
then there needs to be the additional showing of, you know,
613
00:23:15.990 --> 00:23:17.280
indirect threats require an intent
614
00:23:17.280 --> 00:23:18.700
to put the victim in fear
615
00:23:20.400 --> 00:23:22.953
again, that's at 653 in Kerns.
616
00:23:24.090 --> 00:23:28.189
So under, again, sort of those principles taken together,
617
00:23:28.189 --> 00:23:33.090
I think our statute, as Justice Sotomayor
618
00:23:33.090 --> 00:23:35.010
in her concurrence noted,
619
00:23:35.010 --> 00:23:37.380
reflect a common sense understanding
620
00:23:37.380 --> 00:23:40.023
that threatening someone is an intentional act.
621
00:23:41.023 --> 00:23:43.470
I think that's what this court has done
622
00:23:43.470 --> 00:23:45.570
with Section 2 historically.
623
00:23:45.570 --> 00:23:47.913
So I don't think Counterman affects that.
624
00:23:48.870 --> 00:23:51.333
If there are no additional questions, I would.