September 29, 2020

In this Facebook threats case, no wait for Supreme Court


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FACEBOOK-THREATSBy Tony Mauro, From The National Law Journal
For the second time, a federal appeals court has decided not to wait for the U.S. Supreme Court to rule on whether the First Amendment invalidates a federal law that could make it a crime to post threatening statements on Facebook.
The U.S. Court of Appeals for the Tenth Circuit ruled Thursday in United States v. Wheeler that a jury should decide whether Kenneth Wheeler of Colorado actually intended to threaten anyone when he wrote in Facebook posts that his “religious followers” should kill police officers and children.
Pending before the Supreme Court is a separate case, Elonis v. United States, that raises the same issue—whether the law against threats only covers those where the speaker intends that the threats be carried out, or a broader category of threats in which a “reasonable person” reading the postings would find them threatening, regardless of the speaker’s intent. The high court heard arguments in Elonis on Dec. 1.
Wheeler was convicted and sentenced to 40 months in prison under the federal law for posting Facebook updates from Italy in 2012 that urged his followers to “kill cops, drown them in the blood of thier [sic] children, hunt them down and kill their entire bloodlines.” Wheeler, who included the names of certain officers, was upset about a drunk driving arrest that he believed was a “set-up.”
In another Facebook update, Wheeler said, “If my dui charges are not dropped, commit a massacre in the stepping stones preschool and day care, just walk in and kill everybody.” He was referring to a preschool near where he lived in Grand Junction, Colo.
When he was arrested, Wheeler said he had no religious followers and thought he had deleted all his Facebook friends.
But some people, including local police officers, did see his postings and “took the threats seriously,” according to the government’s brief in the Tenth Circuit. Police increased patrols near the preschool. But Wheeler’s lawyers asserted that “calling generally on others to commit violence, particularly others who don’t exist, does not constitute a threat as a matter of law.”
In a separate case last September, the Tenth Circuit ruled that in threat cases, the government has to prove subjective intent on the part of the speaker. Because of that ruling, the Tenth Circuit decision on Thursday said that Wheeler’s jury should have been instructed on the intent element. The government argued that the flawed jury instruction was “harmless error” because the evidence presented at trial made Wheeler’s intent to threaten obvious.
“We disagree,” Judge Paul Kelly Jr. wrote for the panel. “This is not an instance where an omitted element [from the jury instructions] was supported by uncontroverted evidence.” Joining the decision were senior judges Bobby Baldock and David Ebel.
The panel said Wheeler should be retried with corrected jury instructions. The Justice Department had suggested the Tenth Circuit should wait for the Supreme Court to rule in Elonis, but Kelly wrote that because Wheeler is in prison, “we should not delay resolution of this case.”
Photo: BigStock
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