Sunday, December 9, 2012

Ninth Circuit Says Hoax Anthrax Threat Not Protected By Free Speech

The Ninth Circuit ruled last week in U.S. v. Keyser that a criminal defendant's hoax anthrax threat was not protected by the First Amendment.

Keyser, in an ill-fated and badly misguided effort to drum up support for his self-published book, Anthrax: Shock and Awe Terror, mailed hundreds of packets of powder labeled "Anthrax."  The packets actually contained sugar.  (The three mailings at issue in this case went to Congressman Radinovich's Modesto office, a McDonald's restaurant, and a Starbucks.)  Keyser was convicted on two counts of mailing threatening communications and three counts of communicating false or misleading information regarding the presence of a biological weapon.  We was sentenced to 51 months in prison.  He appealed, in part, on the argument that his conviction and sentence violated free speech.

The Ninth Circuit disagreed.  The court said that the mailings to McDonald's and Starbucks constituted unprotected true threats:

Given the broad media coverage of actual anthrax being sent through the mail in 2001, a reasonable person would understand that a recipient would perceive a packet of powder with the word "Anthrax" and a biohazard symbol printed on it as a threat.  A reasonable person would also understand that the word "sample" would not alleviate that concern--if read and processed at all, the word would likely indicate a small amount of the actual substance, rather than a prop or representation.

Op. at 12.  

The court said the mailings were also not protected as a hoax.  The court cited and distinguished Alvarez (the Stolen Valor Act case from last term), quoted its own Alvarez ruling, and said that this case involved a false statement plus harm:

False and misleading information indicating an act of terrorism is not a simple lie.  Instead, it tends to incite a tangible negative response.  Here, law enforcement and emergency workers responded to the mailings as potential acts of terror, arriving with hazardous materials units, evacuating buildings, sending the samples off to a laboratory for tests, and devoting resources to investigating the source of the mailings.  Recipients testified to being "scared to death," "petrified," "shocked and appalled," "worried," and feeling "instant concern."  . . .  Prompting law enforcement officials to devote unnecessary resources and causing citizens to fear they are victims of a potentially fatal terrorist attack is "the sort of harm . . . Congress has a legitimate right to prevent by means of restricting speech."  United States v. Alvarez, 617 F.3d 1198, 1215 (9th Cir. 2010).

Op. at 14-15.


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