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December 02, 2010
Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a "True Threat" -- US v. Jeffries
[Post by Venkat]
US v. Jeffries, 10-CR-100 (E.D. Tenn) (Report and Recommendation; Oct. 22, 2010)
Background: The defendant was charged with transmitting a video through interstate commerce which contained a threat to kill or injure a Knox County Chancellor. The chancellor was overseeing a custody dispute between the defendant and his ex-wife, and the video centered around the defendant's dissatisfaction with the treatment he had received so far in the family law court system. The video did not mention the chancellor by name. It was uploaded to YouTube, made its way to defendant's sister's Facebook account, "where it was directed to persons with knowledge of the circumstances surrounding the custody dispute." In the video, the defendant sings, plays guitar, and talks about "being alienated from his daughter by judges, lawyers, and his ex-wife." He goes on to say that "he does not care if he has 'to kill a judge or a lawyer or a woman . . . this sh*t needs to stop cause you're gonna lose your job/ And I guarantee you, if you don't stop, I'll kill you.'" Defendant rants further, and closes the video by staying "You better keep me on God's side. Do the right thing July 14th."
Procedural Issue: The court first addresses the procedural issue of whether the case can be properly resolved via a pre-trial motion to dismiss. The court's discussion of whether it was proper to resolve the case at the motion to dismiss stage was confusing, but the court concludes that defendant is not entitled to dismissal of the indictment because the essential facts relevant to the case were disputed. Most importantly, "[a]lthough the parties appear[ed] to agree that the defendant loaded the [video] onto the YouTube website on the Internet, it [wasn't] clear to the Court that particular action was his only means of disseminating the video." Defendant focused on the fact that the chancellor would not be likely to encounter the video since he would have to search through some "100 million videos" in order to find it (and unless he was searching through all of the videos posted by litigants who appeared in front of him, he would have no reason to watch this video, since the chancellor was not named in the video) or it would have to be forwarded to the chancellor by someone, and there was no allegation that defendant forwarded the link to the commissioner. The court found that the defendant's contentions were contradicted by some preliminary evidence - primarily, the testimony of the defendant's sister that she first saw the video on her Facebook page (and not on YouTube). The court concludes that the manner in which the video was disseminated would clearly affect the court's analysis and based on this concludes that dismissal is not appropriate at the pre-trial stage.
Was the Video a True Threat?: In an abundance of caution, the court goes on to resolve the issue of whether the video constituted a true threat and was punishable under 18 USC section 875(c). The court finds the following facts for purposes of the analysis:
(1) The Defendant created the video “Daughter’s Love[;]”
(2) the video contains statements about killing and bombing judges;
(3) the threatening statements in the video are directed toward Chancellor Moyers, although he is not named, as shown by the overall context of the words in the video, including the Defendant’s opening statement that “[t]his song’s for you, judge” and closing command to “[d]o the right thing July 14[;]”
(4) the Defendant posted the video to the Internet website YouTube.com;
(5) the Defendant or someone else who viewed the video linked it to the Defendant’s sister’s Facebook page, thereby bringing it to the attention of the Defendant’s sister and all of her “friends” on Facebook;
(6) neither the Defendant, nor his sister, directly communicated the Defendant’s video or a link to the video to Chancellor Moyers; and
(7) Chancellor Moyers eventually saw the video.
The statute had two elements according to the court's reading of relevant Sixth Circuit precedent: whether a reasonable person (not necessarily the intended victim) would perceive the statement as (1) a "serious expression of intention to inflict bodily harm" and (2) being made to "effect some change or achieve some goal through intimidation."
Defendant argued that a reasonable person would not view the video as being made to effect a particular result "because the nature of YouTube makes it extremely unlikely that the video would ever be viewed by [the chancellor]." Defendant analogized the YouTube posting to "writing a threat on a piece of paper that is then placed in a bottle and thrown into the ocean or posted on the bulletin board of a public library in another city." The government responded that it was irrelevant as to whether the chancellor actually received the video, and the key question was whether "a reasonable person would perceive [that] the [d]efendant intended the video to intimidate." In the judge's view, a better analogy would be that defendant "shouted his message to a crowd of people who had knowledge about the circumstances of his custody dispute . . . [thus increasing] the likelihood that someone would report the threat . . . ." (None of the analogies were particularly satisfying, but that's neither here nor there.)
Ultimately, the court rejects the defendant's motion to dismiss.
This is an interesting case.
The court cites to a previous case (US v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997)), where the Sixth Circuit held that the defendant's private email exchange (with a friend) of violently misogynistic stories did not fall under section 875(c) because a reasonable person would not view the stories as being made to "effect some change or achieve some goal through intimidation." One judge dissented from Alkhabaz, advocating a different standard (which did not require an intent to effect some change or result through the threat) and arguing that there was no First Amendment bar to prosecution based on a private email exchange. (Here's a post by Susan Brenner discussing the Alkhabaz case ("Fantasy"). The post presciently asks about a hypothetical that is closely analogous to the facts of this case.)
The difference between Alkhabaz and this case is that in this case, the message was not a private communication between friends - the message was posted to the internet. Nevertheless, it was not directed at the commissioner specifically, and did not mention his name. On the one hand, you could have a communication that is directed at (or which would reasonably find their way to) the person that the speaker seeks to intimidate. On the other hand (as in Alkhabaz) you could have a private communication with a totally unrelated third party - for example, the defendant could have just sung the song in question in person to his sister. Depending on the context, this type of a communication may or may not satisfy the statute. Finally, there's this case. The communication was sent into the social stream. What are the chances that someone would have forwarded a link to the video to the commissioner? Would a reasonable person believe that this was likely, or probable? Would an objective viewer think that defendant intended to influence the outcome of his family law case by posting the video on YouTube? Would it matter if defendant shared the video on Facebook?
Oddly, the judge's order adopting the magistrate's recommendation (which you can access at Scribd here) contains a footnote indicating that the government issued a superseding indictment. The key changes between the old and the new indictment is that the superseding indictment alleges that video was uploaded to "YouTube[,]Facebook, [and] to KnoxCounty Chancellor Micahel W. Moyers." Originally, the government argued that the video was uploaded to YouTube but shared to the defendant's sister's Facebook page. These seem like significant changes, and I'm surprised the order just footnotes this without discussing their relevance.
There's obviously a significant First Amendment issue lurking in the background. In Alkhabaz, the Sixth Circuit avoided the First Amendment issue by narrowly construing the statute and finding that the defendant's conduct in that case did not violate the statute (since the email exchanges were made in furtherance of a [warped] friendship), but this case seems to more squarely present the First Amendment question. The U.S. Supreme Court has held that true threats ("those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group") are not entitled to First Amendment protection, but determining exactly what constitutes a true threat that can be criminalized is easier said than done. It would seem that someone would have to have reasonable fear or apprehension as a result of the communication, and a casual statement among friends would not satisfy the standard. To complicate matters, courts have struggled with the appropriate standard for the statute in question (and with threats in general). Some courts employ an objective standard, some a subjective standard, and require that the prosecution satisfy both an objective and a subjective standard (where the defendant must intend to communicate a threat that is reasonably perceived as one). (See United States v. White, 2010 U.S. Dist. LEXIS 9603 (W.D. Va. Feb. 4, 2010) for a discussion of the various standards.)
Here, given the restrictive Sixth Circuit precedent - that requires an intent to effect a result as an element of the crime - it looks like the court will have to address the issue of whether posting to YouTube and/or Facebook is sufficient to satisfy the element. I'm not even sure what standard the court will use - whether a reasonable person would think it was likely that the video would have been forwarded to the commissioner? Whether the commissioner would have been likely to encounter the video while surfing the web or accessing Facebook? That seems like an awfully loose standard, and potentially inappropriate, given the First Amendment interests involved.
All this said, the video was strongly worded and very specific and detailed. It's tough to imagine why the defendant posted the video other than as a threat. On the other hand, if he wanted to threaten the commissioner and influence the outcome, he could have taken some additional simple steps, like naming the commissioner in the video.
Posted by Venkat at December 2, 2010 02:23 PM | Content Regulation