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Threats must be intentional, court finds

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NEWS MEDIA UPDATE   ·   NINTH CIRCUIT   ·   Newsgathering   ·   May 26, 2005

NEWS MEDIA UPDATE   ·   NINTH CIRCUIT   ·   Newsgathering   ·   May 26, 2005

Threats must be intentional, court finds

  • The First Amendment prohibits punishing individuals for making threats unless they intended to threaten the victim, a federal appeals court ruled this week.

May 26, 2005  ·   In order to punish someone for making threats, the First Amendment requires that the individual intended to threaten, not merely that someone reasonably interpreted a statement as a threat, the U.S. Court of Appeals in San Francisco (9th Cir.) ruled Tuesday.

Paul Kent Cassel, of Randsburg, Calif., lived on Mojave Desert property owned by his girlfriend, Anastasia Kafteranis, and next to several federally owned lots. When the government decided to sell the lots, Cassel, accompanied by one or more of his dogs, approached a number of potential buyers in an attempt to dissuade them from buying the land, according to court records. One potential buyer, Mickey Goodin, testified in court that Cassel told him that if he built anything on the lot, Cassel would see to it that it was burned, stolen or vandalized. Cassel denied making the statements.

In November 2000, Cassel was criminally charged with interfering with a federal land sale. A federal law prohibits “intimidation” that “hinders, prevents, or attempts to hinder or prevent, any person from bidding upon or purchasing” federal land at a public sale. Cassel was convicted in 2001 and sentenced to five months in prison and 150 days home confinement.

Cassel appealed and this week, a three-judge panel of the court of appeals ordered that he be retried.

Acknowledging that the Court of Appeals’ previous rulings on threats had been contradictory and unclear, Judge Diarmuid F. O’Scannlain wrote for the court that while a speaker does not need to actually intend to carry out a threat to be punished, the First Amendment requires that the speaker must have intended his words or comments to be understood by the victim as a threat. The victim’s reasonable but subjective interpretation of the words or conduct as threatening is not enough.

The court ruled that while the federal law could reasonably be interpreted as silently including that requirement, the jury in Cassel’s case was not instructed that he must have also intended to threaten, so he must be given a new trial.

“Were it otherwise, a defendant could be convicted under [the statute] who, for example, merely attempted to dissuade the potential bidder by informing him of dangerous conditions in the area surrounding the land to be sold. Such a result comports neither with the First Amendment nor with the statute’s purpose, which is to punish interference by intimidation, not to prevent potential land buyers from hearing negative viewpoints on the land for sale,” O’Scannlain wrote.

Although threat lawsuits against the news media are rare, the Supreme Court of Arizona is currently considering a case where the Tucson Citizen has been sued for intentional infliction of emotional distress over a letter to the editor. The letter, written by Dr. Emory Metz Wright Jr., suggested that insurgent attacks in Iraq could be stopped by killing Muslims attending mosques. Two Islamic-Americans sued the newspaper, but not Wright, and have argued, among other things, that the newspaper is not protected by the First Amendment because it threatened them by printing the letter.

Arguments were heard in the case, Citizen Publishing v. Miller, in March, and a decision is expected later this year. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case.

(U.S. v. Cassel)GP

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