August 31, 2012
Eighth Circuit Says False Conveyance of Bomb Threat is Not Protected Speech
A three-judge panel of the Eighth Circuit ruled yesterday in US v. Williams that a person's false conveyance of a bomb threat on an airplane is not protected speech. The ruling upholds two federal statutes criminalizing the false conveyance of bomb threats and affirms the defendant's conviction.
Defendant Williams was convicted under two federal statutes. The first, 18 U.S.C. Sec. 35(b), says,
Whoever willfully and maliciously, or with reckless disregard for the safety of human life, imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter or chapter 97 or chapter 111 of this title--shall be fined under this title, or imprisoned not more than five years, or both.
The other, 18 U.S.C. Sec. 844(e), says,
Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle or other real or personal property by means of fire or an explosive shall be imprisoned for not more than 10 years or fined under this title, or both.
Williams argued that the statutes were invalid content-based restrictions on speech, not falling within one of the categorical exceptions, and were overbroad.
The court disagreed. The court ruled that the statutes were "true threats," a categorical exception to the general ban on content-based restrictions on speech. The court rejected Williams's claim that he had no subjective intent to threaten when he made the statement--and that therefore the statement couldn't have been a true threat--saying that its 2011 case U.S. v. Mabie held that true threats did not need such a subject intent; instead, under Mabie, the court uses an objective test for determining whether a communication is a true threat, considering the entire context of the statement.
The court also rejected Williams's argument that the statutes were overbroad. The court said that the narrowing elements of the statutes--the requisite mental states, "willfully," "maliciously"--"narrow the field as far as those who may potentially fall within their reach." Op. at 7.
The court recognized that "[t]here is no general exception to the First Amendment for false statements," citing the Supreme Court's recent ruling in United States v. Alvarez. But here, according to the court, the statutes fall within a categorical exception to the regular content-based rules, they pose no threat of criminalizing speech broader statements, they do not chill otherwise valuable speech, and they only criminalize speech that is likely to cause harm.
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