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Christopher Williams
645 E. Holly St. #204 Boise, ID83712
Email: Will8385@vandals.uidaho.edu
Tel: (509) 540-0028
WRITING SAMPLE
To whom it may concern,
Attached is a 9 page copy of the facts and analysis section of an appellate paper written
for University of Idaho Law Schools McNichols Appellate Advocacy Competition in fall 2013.
Out of approximately 30 participants, I was placed in the top 16. Althoughcritique was sparsely
offered by professors and fellow students, the work remains entirely written by me.
Thank you for reading,
Christopher Williams
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ISSUES ON APPEAL
1. Under the free speech clause of the first amendment of the U.S. Constitution, which
allows only limited exceptions to the general rule that all speech is protected, did the
district court err by determining that the true threat exception should be measured by a
broad objective standard that makes all speech that could be interpreted as a threat
unprotectable, as opposed to a narrow subjective standard that only makes threats that the
communicator intended to be interpreted as a threat punishable.
2. [SECOND ISSUE OMITTED]
STATEMENT OF THE CASE
On J anuary 30, 2013, Ms. MaryJ ane Cobbs was questioned by two prison guards, Officer
Malcom Reynolds and Officer Dobson, regarding apossibly threateningletter that Ms. Cobbs
was suspected of sending. (R. 1112). At the time of the questioningshe was a prisoner for an
unrelated incident. (R. 16:2530). She was interrogatedby the Officers for several hours in a
small room. (R. 13:11). Ms. Cobbs was not informed of her rights and made incriminating
statements after relentless questioning. (R. 14:1923).
Captain Simon Tam is a ship captain responsible for anincident which killed a whaler.
(R. 78). About a week before the interrogation, CaptainTamreceived a letter anonymously
written by Ms. Cobbsthat, in Tams words, stated the writer was going to see that [Tam] got
what [he] deserved and ended with an eye for an eye. (R. 8:19). Tam was scared by the
letter. (R. 8:22). Ms. Cobbs was attempting to express support for Tam in her letter and convey
her disdain for the whaler that died. (R. 16:1213). This is in line with her past attempts at
expressing her political opinion; one of those incidents, writing a bad check to an animal rights
organization, is the reason she was in prison during the interrogation. (R. 16:2530, 17).
[FACTS RELEVANT TO SECOND ISSUE OMITTED]
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The district court denied the Defendants motion to suppress statements made during the
interrogation, finding instead that the Defendant was not in Miranda custody during the
interrogation, and, thus, her self-incriminating statements were admissible at trial. (R. 10). The
court also found, in contradiction with the subjective standard of true threat, that the speech in
the defendants letter wasa true threat and thus not protectable as free speech under the First
Amendment. (R. 4). The Defendant requests that the Court reverse the decision by the district
court to use an objective standard to determine whether a true threat hadbeen made, and reverse
the decision by the district court to allow Ms. Cobbs self-incriminating statements to be
presented as evidence during trial.
STANDARD OF REVIEW
The question regarding the proper construction of the word threat is a question of law
decided by the court de novo. Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of
Life Activists, 290 F.3d 1058, 1070 (9th Cir. 2002). [. . .]
ARGUMENT
The district court incorrectly found that an objective standard was appropriate when
determining whether the true threat exception to the Free Speech clause of the First
Amendment appliedin this case because the plain meaning of the rule endorsed by the Supreme
Court in Virginia v. Black supports a subjective test, and the subjective standard is more in line
with the long-held principles that allow exceptions to the Free Speech clause. [. . .]
I. THE DISTRICT COURT ERRED IN CONCLUDING THAT AN OBJECTIVE
TEST FOR DETERMINING WHETHER A TRUE THREAT HAS BEEN MADE
WAS THE PROPER TEST BECAUSE THE NARROW EXCEPTIONS TO THE
FIRST AMENDMENT, AS WELL AS THE POLICY ARGUMENTS THAT
SUPPORT A TRUE THREAT EXCEPTION, SUPPORT A SUBJECTIVE TEST.
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Ms. Cobbs requests that the court reverse her conviction under 18 U.S.C. 875(c)
because the district court erred when it used an objective test to determine whether her statement
constituted a true threat in contradiction with the plain meaning of the Supreme Courts rule and
the policy concerns that allow a true threat exception to the First Amendment. The law Ms.
Cobbs was convicted under makes it a criminal offense for anyone to transmit[] in interstate . . .
commerce any communication containing any threat . . . to injure the person of another. 18
U.S.C. 875(c) (1994). The statute contains no definition of the word threat. Id.
The First Amendment explicitly protects the people from the government abridging the
freedom of speech. U.S. CONST. amend. I. The Supreme Court has found that this amendment is
centralized around the idea that debate on public issues should be uninhibited, robust, and wide-
open. Bond v. Floyd, 385 U.S. 116, 136 (1966) (quoting New York Times v. Sullivan, 376 U.S.
254, 270 (1964)). The right to Freedom of Speech guaranteed by the First Amendment is
characterized as a fundamental personal right and liberty. Schneider v. State of New Jersey,
Town of Irvington, 308 U.S. 147, 150 (1939). When the Supreme Court refers to the right as
fundamental, the court emphasizes the importance of preventing the restriction of these
liberties. Id. at 150151. Theissue here is whether Ms. Cobbs actions fall under the
constitutional exception to the first amendment that makes a true threat unprotectable as
speech. The court should err on the side of caution and take a more narrow view of how broadly
the true threat exception extends.
The non-protection of true threatsis one of the narrowly and jealously defined exceptions
to the fundamental right to free speech. Watts v. U.S., 394 U.S. 705 (1969). There are two
approachesaccepted by the circuit courtsused to determinewhether a statement is construed as a
true threat or not. The first is a subjective approach that turns on whether the defendant intends
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for their statement to be construed as a threat. U.S. v. Stock, 2013 WL 4504766 (3d Cir. 2013)
(We hold that the word threat in 875(c) encompasses only communications expressing an
intent to inflict injury in the present or future). The second, more broadly applicable, approach
is an objective approach that merelyrequires the government to prove a reasonable recipient
would interpret the defendants communication as a serious threat to injure. U.S. v. Nicklas, 713
F.3d 435, 440 (8th Cir. 2013). Ms. Cobbs never intended for her letter to intimidate or threaten
Tam, and, therefore, the letter was an exercise of free speech under the subjective test and is
protected. Because Ms. Cobbsspeech was protected under the subjective test, the district courts
ruling should be reversed.
A. The plain meaning of thetrue threat exceptionruleexplicitly carries an element of
intentionand thus supports the subjectivetest.
The Supreme Court statedthat True threats encompass those statements where the
speaker means to communicate a serious expression of an intent to communicate an act of
unlawful violence to a particular individual . . .Virginia v. Black, 538 U.S. 343(2003) (citing
Watts v. U.S. 394 U.S. 705 (1969)) (emphasis added). The definition of mean used as a verbis
1Intent to convey, indicate, or refer to (a particular thing or noun); signify . . . 2Intend
(something) to occur or be the case: they mean no harm . . . 3 Have as a consequence or result . .
. THE NEW OXFORD AMERICAN DICTIONARY Loc 580213 (3d ed. 2011) (retrieved from Kindle).
Thus where J ohn means to eat the apple pie, through the plain and ordinary meaningof means,
J ohnintends that his consumption of the apple pie is the outcome. The same is true of the issue
of true threat. Where a person means to communicate a serious threat of an act of violence, they
intend to communicatea serious threat of an act of violence.
The objective test is a gross misinterpretation of the Supreme Courts true threat rule.
The objective test espoused by some circuit courtsrequires onlythat, in order for the speech to
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be unprotectable under the true threat doctrine, the defendant should have reasonably foreseen
that the statement he uttered would be taken as a threat by those whom it is made. U.S. v.
Whiffen, 121 F.3d 18, 21 (1st Cir. 1997) quoting U.S. v. Fulmber, 108 F.3d 1486 (1st Cir. 1997).
This broad rule flies inthe face of the Supreme Court rule that requires that the communicator
intend tocommunicate a threat of violence, completely ignoring the language of the rule
espoused.
Because the plain and ordinary meaning of the true threat rule as endorsedby the
Supreme Court requires that the communicator intend to convey a threat to the person receiving
the communication, the subjective test is more in syncwith the language of the true threat
exception.
B. The subjectivetest is more appropriate in light of the principles of the First Amendment
that favor narrowly tailored exceptions to the general rule that all types of speech should
be broadly protected.
There are narrowly tailored exceptions to the broad rule that speech is protectedin
addition to the non-protection of true threat. Brandenburg v. Ohio, 395 U.S. 444 (1969) (action
that is likely to incite lawless action as unprotected speech); New York v. Ferber, 458 U.S. 747
(1982) (child pornography is unprotected); Chaplinsky v. State of New Hampshire, 315 U.S. 568
(1942) (fighting words are unprotected). These exceptions to the general rule only exist because
they are of such slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality. R.A.V. v. City of St.
Paul, Minn., 505 U.S. 377, 382383 (1992) (quoting Chaplinsky, 315 U.S. at 572). So exceptions
to the First Amendment are very rarely allowed, and, when allowed, those exceptions are
narrowly interpreted.
1. The people have a strong vested interest in their right to free speech, and only in extreme
circumstances can this interest be circumvented.
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It is widely accepted that above all else, the First Amendment means that government
has no power to restrict expression because of its message, its ideas, or its content. Chicago
Police Dept. v. Mosley, 408 U.S. 92, 95 (1972). This is a broad principle designed to promote
discourse between citizens, thus protectingan unfettered interchange of ideas for the bringing
about of political and social changes desired by the people. New York Times Co. v. Sullivan, 376
U.S. 254, 269 (1964) (quoting Roth v. U.S., 354 U.S. 476, 484 (1957)).
If an objective approach isapplied, the exchange of ideas would be hampered because the
standard, that any speech that a reasonable person could perceive as a threat is unprotectable,
would act as a disincentive to speakfreely and without worry that their words could be perceived
as a threat. Under this approach, a person that wants to convey an idea in a manner or method
that is questionable, as to whether areasonable person would perceive it as a threat, is more
likely to stay quiet and dissociate themselves fromthe interchange of ideas the Supreme Court
has foundso important. For example, an objective standard is likely to provide a disincentive to
citizens that wish to express their ideas, like the boisterous defendant in Watts v. U.S. did, from
participating in the debate on public issues, which the court found should be uninhibited,
robust, and wide open. 394 U.S. 705, 708 (1969).
The subjective approach should be followed because it better protects the vested interest
in a persons right to express him/herself, while following the principles that allow a true threat
exception, than the objective approach does.
2. Political hyperbole is generally given more protection than ordinary speech.
Political speech is given far more deference than other types of speech because it fits
directly into the prime directiveof the First Amendment, that of allowing an exchange of ideas.
The Supreme Court has stated that speech on public issues occupies the highest rung of the
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hierarchy of First Amendment values, and is thus entitled special protection. Connick v. Myers,
461 U.S. 138, 145 (1983) quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913
(1982). Speech is of public concern, and thus political, if it can be fairly considered as
relating to any matter of political, social, or other concern to the community. Connick, 461 U.S.
138, 146 (1983).
A persons political speech should not be inhibited simply because the recipient may
become afraid or upset by the content of the speech. For instance, the Supreme Court decided a
case involving the Westboro Baptist Church protesting a military funeral with picket signs
containingphrases including, but not limited to, Thank God for Dead Soldiers, Fags Doom
Nations, and Priests Rape Boys. Snyder v. Phelps, 131 S. Ct. 1207, 1210 (2011). The court
found that even though the jury found the content of the signs to be outrageous, the extreme
content of the signs cannot overcome the special protection guaranteedto political speechin
Connick. Id. at 1219; Connick, 461U.S. 138, 145. To inhibit political speech by allowing
criminal action against a person simply because another person may feel upset or threatened by
the language would upset the special protections provided to political speech espousedin Snyder.
In this case, Ms. Cobbs letter to Captain Tam fits well within the definition of political
speech because the speech in her letter relates to political, social and community concerns,
therefore her letter is guaranteed, on top of the broad protections already offered to speech,
special protection. The special protection that would best implement the First Amendments
directives would be a requirement of subjective intent when determining whether a true threat
has been made.
C. Applying an objective test has the potential of creating absurd results.
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Where possible, a court should avoid an interpretation of law that would lead to absurd
results. See U.S. v. Kirby, 74 U.S. 482 (1868). Toadopt the objective approach andinterpret that
a punishablethreat includes any statement that could be interpreted as a threat by a reasonable
person without introducing the intent of the communicating party as a factor or element would
create absurd results that turns a misstatement or misinterpretation into a federal offense
punishable by a fine or up to twenty years in prison. 18 U.S.C. 875(c) (1994). For instance, a
person not fluent in writing English couldwrite a letter, without any intent to intimidate or
threaten, that sounds threatening in Englishand be punished for the letters contents. This is
similar to the case at hand. Ms. Cobbs intended to send Captain Tams a letter of support. She
was sloppy in her delivery, as the record shows she often is, and Captain Tams perceived the
letter as a threat. Ms. Cobbs should not be subject to afine or up to atwenty year federal prison
sentence simply because Captain Tams was scared by her letter of support.
Ms. Cobbs requests that the Court reverse and remand the decision by the district court to
use an objective approach and to instead utilize the subjective approach, which is more in line
with the constitutional principles that promote the Freedom of Speech.
II. THE DISTRICT COURT ERRED IN FINDING THAT MS. COBBS WAS NOT IN
CUSTODY FOR THE PURPOSES OF MIRANDA BECAUSE A REASONABLE
PERSON IN MS. COBBS POSITION WOULD NOT BELIEVE THEY WERE
FREE TO LEAVE DURING THE INTERROGATION.
[ANALYSIS OF SECOND ISSUE OMMITTED]
CONCLUSION
Ms. Cobbs respectfully requests that this court reverse the district courts decision to
admit her self-incriminating statements during trial, and to reverse the district courts decision to
apply an objective standard to the true threat exception.