ARGUMENT

A. The Primary Concern of First Amendment Threat Law Is To Protect Political Speech.

"Threats of violence are outside the First Amendment," proscribable for reasons that include "protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992). See N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969) (employer threats in union organizing setting unprotected). In recently revisiting the subject of threats in a First Amendment context, the U.S. Supreme Court invalidated a blanket state court injunction against all 'images observable' in political protests against abortion providers, but would have allowed "prohibiting the display of signs that could be interpreted as threats or veiled threats." Madsen v. Women's Health Center, 114 S.Ct. 2516, 2529 (1994). "Clearly, threats to patients or their families, however communicated, are proscribable under the First Amendment." Id.

The limited First Amendment address to statutory threat prohibitions has focused on preventing misapplication of facially constitutional laws to political speech, particularly dissenting political advocacy, which is often expressed as virulent hostility to government officials and agencies. Thus the Supreme Court ruling that constitutionally bounded statutory threat law occurred on a conviction for threatening the life of the President. Saying, "if they ever make me carry a rifle the first man I want to get in my sights is LBJ" Watts v. U.S., 394 U.S. 705,706(1969), attendant to a political demonstration, was held not to be a "true 'threat'" because, in context, it was "political hyperbole," 394 U.S. at 708, a "very crude offensive method of stating a political opposition to the President." 394 U.S. at 708. It was thus to prevent prosecution for a heated political attack-- here in the verbal form of menacing the person who stands for the policies criticized -- that the Supreme Court directed that the law of threat be interpreted "with the commands of the First Amendment clearly in mind." 394 U.S. at 707.

To clarify the First Amendment's commands, the Watts Court construed 18 U.S.C. § 871 "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials." 394 U.S. at 708 (quoting New York Times v. Sullivan) (emphasis added). New York Times v. Sullivan, 376 U.S. 254 (1964) had recognized the First Amendment interests at stake in libel prosecutions in a case that raised political concerns. Sullivan saw that inaccurate criticism of public officials may be damaging without libeling them just as Watts saw that a stated wish to harm the President may be menacing without threatening him. Both rulings, in effect, sustain the repeal of sedition laws. Sullivan's more stringent First Amendment standards for public than private libel supports this analysis.

The broader concern behind these rulings is to protect "highly charged political rhetoric lying at the core of the First Amendment." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 926-27 (1982) (protecting public speech during political boycott). Thus advocacy of force to upset the existing political order is protected unless it threatens imminent violence. Brandenburg v. Ohio, 395 U.S.444(1969). Angry citizens may violently castigate police performing their duties. Houston v. Hill, 482 U.S. 451(1987). See also Gooding v. Wilson, 405 U.S. 518(1972) (overturning conviction for verbal attack on police officers under statute construed without limitation to tendency to cause violence). Political discourse is protected when offensive. Cohen v. California, 403 U.S. 15 (1971) (reversing conviction for "Fuck the Draft" written on jacket displayed in courthouse). As the Fifth Circuit explained, rejecting a broad "clear and present danger" defense in a threat case:

These cases do not state a general principle applicable to every imaginable utterance or form of expression, but rather effectuate the first amendment's general guarantee of governmental noninvolvement in speech implicating a broadly conceived notion of political and social discourse. Shackelford v. Shirley, 948 F. (935, 937 (5th Cir.1991)(emphasis added)(upholding conviction for threat under state telephone harassment statute).

See U.S. v. Bellrichard, 994 F.2d 1318, 1321 (8th Cir.1993).

Courts of Appeals have accordingly implemented Watts to permit prosecution of authentic threats with an eye to preventing misuse of the law of threat to silence political debate. When a putative threat might be core political speech--perhaps when directed at political figures, public officials, or government agencies--First Amendment concerns are heightened. Examples are U.S. v. Kelner, 534 F.2d 1020 (2d Cir.) cert. denied, 429 U.S. 1022(1976)(threat against Arafat by JDL); U.S. v. Kosma, 951 F.2d 549, 554 (3d Cir. 1991)(threat to President); Melugin v Hames, 38 F.3d 1478 (9th Cir. 1994) (threat included judge). Even in such cases, the First Amendment may not need to be invoked, such as U.S. v. Vincent, 681 F.2d 462(6th Cir. 1982) and U.S. v. Lincoln, 462 F. 2d 1368 (6th Cir.), cert. denied, 409 U.S. 952 (1972).

However, when a threat in context does not raise a concern for protecting political dissent, see, e.g., U.S. v. Ingraham, 832 F.2d 229 (1st Cir. 1987) (threat regarding lawsuit); U.S. v. LeVison, 418 F.2d 624 (9th Cir.1969) (threat to former wife to have daughter write a letter); U.S. v. Hill, 943 F.2d 873 (8th Cir.1991) (threat to kidnap girl); U.S. v. Sullivan, 916 F.2d 417 (7th Cir. 1990) (threat to woman for bail money); U.S. v. Lampley, 573 F.2d 783 (3d Cir.1978)(threat due to romantic disappointment), the restrictive role of the First Amendment is attenuated to nonexistent. Threats against a social group or its members as such, e.g. predicated on racist, U.S. v. Gilbert, 884 F.2d 454 (9th Cir.1989), and anti-Semitic, U.S. v. Khorrami, 895 .2d 1186 (7th Cir.1990) threats are also of this type when no political dissent from the dominant order is involved. Cases like U.S. v. Cox, 957 F.2d 264 (6th Cir.1992) have elements of both, since a government agency was the target, but is closer to the second, because getting property back was not a political issue. See also U.S. v. Lincoln, 589 F.2d 379 (8th Cir.1979)(anger at not being written by President).

When threatening words are employed more to convey a political position than to portend violence, prosecutions are dismissed. See, e.g, People v. Rubin, 96 Cal. App.3d 968 (Ct.App.1979) (JDL soliciting murder of Nazis found political hyperbole). Expressions of opinion, even violent ones, are permitted, as in Watts, but words that convey a serious intent to injure, even if loaded with political import, go to the jury, and such verdicts are routinely sustained. See U.S. v. Kosma, 951 F.2d 549, 554-555 (3d Cir. 1991) (collecting cases, threats to President found unprotected).

In light of this tradition, Baker's transmissions simply do not merit the extraordinary First Amendment solicitude they enjoyed in the hands of the District Court. The indicted communications do not attack government or confront officials or agencies or challenge anyone in authority. They do not present the "communication of information or opinion," Cantwell v. Connecticut, 310 U.S. 296, 310 (1940), or "exposition of ideas," Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) in the First Amendment protected sense. Baker and Gonda are not engaging in political discourse the First Amendment protects any more than was a letter demanding a daughter write, LeVison, 418 F. 2d 624, a flying missive demanding better treatment from a publisher, U.S. v. Baudin, 486 F. Supp. 403 (S.D.N.Y.1980), or abusive telephone calls attacking all Jews, Khorrami, 895 F.2d 1186. Neither Baker nor the District Court even tries to dignify the transmissions as political speech. Attempting to justify his pornography of Jane Doe, Baker's post-arrest apologia does not mention politics. He says he made pornography of her "to exorcise my demons" because he was attracted to her and spread it to get attention. Statement of Jake Baker, January 20, 1995. Yet the District Court protected the transmissions as if they lay at the heart of the First Amendment.

B. The District Court Opinion Invents First Amendment Law And Diverges Dramatically From Precedent.

The opinion below is widely at variance with authority, including the ruling on which the District Court purports to rely. It dismisses the indictment by elevating to a required test the Second Circuit's gloss on Watts:

So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, 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. U.S. v. Kelner, 534 F.2d 1020, 1027 (2d Cir.1976)(Oakes,J.)

This is dictum. 534 F.2d at 1029 (Mulligan, C.J., concurring). The Supreme Court's stated post-Kelner views in R.A.V. and Madsen do not remotely approach Kelner's stringency, vitiating its authority. Moreover, Kelner is clearly distinguishable from Baker as involving a threat made for arguably political reasons to a prominent political figure. This did not make the Kelner threats protected political speech, 534 F.2d at 1025, but it did validly elevate the constitutional standard to which the evidence there was held.

Other than in Baker, Oakes' Kelner dictum has not been adopted as a test by any federal court outside the Second Circuit¹² or by any other federal circuit.¹³ Its application within the Second Circuit falls far short of Baker, itself an extreme application that not even the Kelner facts could satisfy.

Among district court threat cases in the Second Circuit, only two report using the Kelner dictum, and those permit threat prosecutions on facts far weaker by the Kelner measure than the Baker facts. In U.S. v. Ferrugia, an § 875(c) indictment, found facially valid against First Amendment attack, charged for saying to a prosecutor in a case against defendant, "Anytime you want to step outside, you punk bastard, we can step outside,"and spitting in his face. 604 F. Supp. 668, 671 (E.D.N.Y. 1985). Baker's threats were far more immediate than "anytime" and a lot more specific than "outside," as well as far less ambiguous as to what was to occur. Ferrugia conditioned his threat on a choice Baker did not propose to give his victims: "Anytime you want to...".

Similarly, in U.S. v. Baudin, 486 F. Supp. 403 (S.D.N.Y. 1980), a § 875(c) indictment was permitted over a facial First Amendment attack citing the Kelner language based on a lengthy letter by an author to his publisher protesting his editorial and contractual treatment, proposing the following act: "if I do not get what I want I just possibly might fly through the top man's office window in an attempt at a short field landing on his desk." 489 F. Supp. at 408. "I just possibly might," in the District Court's words in Baker, "does not express an unequivocal intention immediately to do anything." 890 F. Supp. at 1390. Baudin's projected aerial activities are closer to the Baker court's "musings," 890 F. Supp. at 1386, and "fantasies," see § IIB infra, than are Baker and Gonda's sexual plots. Yet Kelner was satisfied.

The misapplication of Kelner in Baker is evident from Kelner's two applications by the Second Circuit, both of which would readily permit the Baker prosecution. Citing Kelner, the Second Circuit upheld a conviction for "arguably...ambiguous" rambling, incoherent, and allusive letters to Second Circuit judges that nonetheless had a "cryptic and menacing tenor." U.S. v. Malik, 16 F.3d 45, 49 (2d Cir. 1993). The Second Circuit also upheld there, as adequate under Kelner, a jury instruction that referred only to "gravity of purpose and apparent prospect of execution" 16 F.3d at 50, (emphasis added) a standard Baker readily meets. In a sentencing enhancement context, the Second Circuit also found support in the Kelner dictum for its conclusion that "write me back today" carries "overtones of imminent threat," U.S. v. Shoulberg, 895 F.2d 882, 886 (2d Cir. 1990), an application that would not pass constitutional muster under the Baker court's as-applied Kelner standard.

Purporting to apply Kelner, the District Court instead fashioned its own extreme "clear and present danger" test of proximity and degree far beyond that of Kelner or any other court. Indeed, were Oakes' dictum applied in Kelner itself the way the District Court applied it in Baker, Kelner's statements would be protected speech. Kelner gave no exact time for carrying out the threat, which under Baker would fail of specificity and immediacy. Of this, the Supreme Court of California observed discerningly:

Kelner's requirement of imminence or immediacy must be read in light of [the fact that][w]hen the defendant made the threat, his victim had not yet even set foot in the United States...Yet the Kelner court found the requisite immediacy..." People v. M.S. and A.G., 10 Cal.4th 698, 712 (1995).

Kelner's threat was transmitted by broadcast on WPIX ten o'clock news. To the Baker court, this would not likely cause viewers of WPIX ten o'clock news, its "only foreseeable recipient" 890 F. Supp. at 1386, to fear violence. Kelner's statement, "We are planning to assassinate Mr. Arafat," 534 F. 2d, at 1021, was found to be threatening. The District Judge in Baker complained at oral argument, "Well, planning a crime isn't what they're charged with...the mere fact that people talk about doing something wrong doesn't make it a crime..."Transcript, Motion to Dismiss, No.95-CR-80106-DT (Cohn, J., May 26, 1995)("Tr.") at 46.

Conversely, no threat prosecution yet permitted pre- or post-trial could withstand the standard applied by the District Court below in the name of Kelner. Melugin's targets, "the things," 38 F. 3d, at 1481, would not be definite enough. Nor would Himelwright's statements, of which "If something happens to these children, someone is going down the tubes" is among his most specific. U.S. v. Himelwright, 42 F.3d 777, 781(3d Cir. 1994). Nor would the statements in U.S. v. Schroeder, 902 F.2d 1469,1470 (10th Cir.), cert. denied, 498 U.S. 867 (1990): "it would be easy to get a gun and walk into the post office and start shooting". Easy things are undone everyday. See 890 F.Supp. at 1390 ("needs go unmet every day"). The statement in Shackelford that one man was "toting an ass whipping" if he came by the other's car, 948 F.2d at 937, might be deemed "unsavory," 890 F. Supp. at 1386, but would be protected speech under Baker. Cox, in which this Court upheld a threat conviction for "you all better have my personal items to me by five o'clock today or its going to be a lot of hurt people there," would be beyond reach. U.S. v. Cox, 957 F. 2d 264, 265 (6th Cir. 1992).

Under existing legal standards properly applied, the Baker facts are more than sufficient to go to a jury, where any factual issues are properly resolved. United States v. Carrier, 672 F.2d 300, 306 (2d Cir.), cert. denied, 457 U.S. 1139 (1982); U.S. v. Merrill, 746 F.2d 458, 462 (9th Cir. 1984). Accord, United States v. Lincoln, 589 F.2d, at 382. See U.S. v. Kerna, 1994 U.S. App. LEXIS 17078 (9th Cir. 1994)(unpublished).

12

The lone partial exception is a paraphrase in Lovell v. Poway Unified School District et al, 847 F. Supp. 780 (S.D.Cal.1994),holding a fifteen year old girl's First Amendment rights violated for discipline under state statute for an alleged threat to her school counselor. RETURN

13

Virtually all cases that cite Kelner do not cite it for the language appropriated by the District Court here. The closest exception is U.S. v. Crews,781 F.2d 826(10th Cir.1986), referring to some of its concepts but not its specific language.The Kelner dictum is not law in any other venue, other than by 1989 incorporation into a California threat statute, Penal Code § 422, Stats 1989, ch. 1135, § 1,at 4195-4196, generating cases thereunder. See also People v.Mirmirani, 30 Cal. 3d 375 (Sup.Ct. 1981) (invalidating prior statute as void for vagueness in part by reference to Kelner dictum). The Hawaii Supreme Court recently adopted the Kelner language in State of Hawaii v. Chung, 75 Haw. 398,415-416 (1993)(sustaining threat conviction). The Kelner language has been squarely repudiated by the Supreme Court of Montana in State v. Ross, 269 Mont. 347, 358-361 (1995), refusing to require the Kelner formulation in a jury instruction under a state statute in a prosecution for threats against abortion service providers, an approach more in line with Madsen. RETURN