Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal – Threatening Communications – Intimidation – First Amendment

Criminal – Threatening Communications – Intimidation – First Amendment

A Roanoke U.S. District Court grants the activist defendant’s motion for acquittal as to one count of making threatening communications to a civil rights lawyer; jury findings of guilt are allowed to stand on two other charges of making threatening communications and one count of intimidation with the intent to influence testimony.

In Count Three, Defendant William A. White was charged with using intimidation of African-American tenants with the intent to influence, delay and prevent their testimony in an official proceeding. The court holds that intimidation does not require a threat made with the intent to place the victim in fear of physical harm or death. Instead, intimidation under section 18 U.S.C. § 1512(b)(1) may be found from what an ordinary, reasonable person considers “harassing” or “frightening” activities, as long as they were done with the intent to influence, delay, or prevent the testimony of any person in an official proceeding.

When this analysis is applied in the instant controversy, it becomes clear that the jury’s decision to convict White when he mailed an offensive letter and an American National Socialist Workers Party magazine to several African-American tenants must stand. White’s letter was blatantly offensive and abusive, filled with racial epithets and violent language. The magazine was more of the same. Although this court would hesitate to say either the letter or the magazine contained a threat of bodily harm or death, it readily acknowledges that his mailing could be considered “harassing” or “frightening.” Thus, the government only needed to present sufficient evidence of White’s intent to “influence, delay or prevent” to meet its burden.

Viewing all the evidence in context, a jury might well conclude that White’s intent, as expressed by his own words, was to scare the African-American tenants to such an extent that they would not “do anything,” including pursue the HUD complaint that White referenced in the letter. This court cannot reject the jurors’ reasonable interpretation.In Count One, White was charged with making threatening communications toward a bank employee. The evidence presented by the government was more than sufficient for a rational trier of fact to have found the essential elements of the crime beyond a reasonable doubt.

Although the defendant is correct in asserting that the e-mail to the bank employee did not specifically threaten to do more than publicize her personal information, the mere fact that e-mail did not contain an express threat does not preclude the jury determining that “a reasonable recipient” knowing the context of the communication would determine the email to be a serious express of an intent to commit an act of unlawful violence to a particular individual. A reasonable juror might interpret the entire letter and course of dealing as a veiled threat that a particular disgruntled customer, i.e. Defendant White, would visit the bank employee or her family with physical violence.

There were no public issues at stake, merely a private legal dispute. The court, therefore, is confident in deciding that there was sufficient evidence for a rational juror to find the defendant guilty beyond a reasonable doubt on Count One.

In Count Five, the defendant was charged with making a threatening communication to an administrator at the University of Delaware in connection with the school’s diversity program. Although White disseminated his opinion on the university’s diversity program widely, his calls to Kathleen Kerr were individually targeted. There was no rhetorical conditionality. Instead, White’s statement that “people who view race like [Dr. Kerr] ought to be shot” was uncompromising and demonstrative.

His statement that he would “hunt her down” could be considered illustrative of his determination to, in fact, shoot Dr. Kerr. There was nothing that suggested his words were in jest, nor was the context of his complaint about the diversity program a light-hearted, humorous context.

A juror could reasonably determine that the defendant was not expressing the desire to participate in an uninhibited, robust debate on public issues, nor the desire to engage in political discourse, but rather the desire to hunt down Dr. Kerr and shoot her because of her beliefs. The expression of that desire, when communicated to Dr. Kerr, might well be considered by a reasonable recipient to be a serious expression of an intent to commit an act of unlawful violence to a particular individual. This court cannot hold that this conclusion is irrational or completely unsupported by the evidence.

In Count Six, the defendant was charged with making a threatening communication to Canadian civil rights lawyer Richard Warman. Although a court must be deferential to the conclusions of the jury, and view the evidence in the light most favorable to the prosecution, this court must conclude that no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt when presented with this evidence. It is clear, when the evidence is viewed in its cumulative context, that White’s actions did not amount to a “true threat” and must, therefore, be deemed protected speech under the First Amendment.

In reaching this determination, the court notes, first, that much of the evidence and violent language attributed to White was taken from blog postings and articles published on the Internet. Contrary to the communications to the bank employee and university administrator, most of the language referring to violence against Richard Warman was not directed or communicated directly to Warman.
Additionally, the violent language on the blog postings themselves indicate no express or implied intent to perpetrate violence against Richard Warman, but instead expressly advocate for his assassination and execution. It is a well established principle of First Amendment law that the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

These assorted Internet posts, even viewed in the light most favorable to the prosecution, can not be deemed sufficient evidence to prove that White intended to communicate a serious expression of an intent to commit an act of unlawful violence toward Richard Warman.

For reasons similar to those outlined above, the communications that Defendant White did directly transmit to Richard Warman can also not be considered “true threats.” Although the e-mail and magazine were sent directly to Warman, in every other respect they are simply not susceptible to characterizations as serious expressions of an intent to commit an act of unlawful violence. They can be characterized only as political hyperbole or, at worst, the mere advocacy of the use of force or of law violation. As such, they are protected under the First Amendment.

The government presented no evidence that these communications were unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution. Consequently, the government has established neither that White made a true threat, nor that he unconstitutionally incited violence. His speech and actions are, therefore, protected under the First Amendment.Because these communications, even viewed in the light most favorable to the prosecution, were not sufficient evidence to prove that White meant to communicate a serious expression of an intent to commit an act of unlawful violence, the court must acquit the defendant of the charges in Count Six of the indictment.

U.S. v. White (Turk, S.J.) No. 7:08-CR-00054, Feb. 4, 2010; USDC at Roanoke, Va. VLW 010-3-064, 32 pp.

VLW 010-3-064

Fulltext Opinions

Leave a Reply