Martinez: Rejecting 1st Amendment Challenges to 875(c)

In U.S. v. Martinez, No. 11-13295 (Nov. 27, 2013), the Court affirmed a conviction for knowingly transmitting a threatening communication, in violation of 18 U.S.C. § 875(c), rejecting First Amendment challenges to this statute. The Court noted that, under Supreme Court caselaw, the First Amendment does not protect “true threats.” The Court rejected the argument that a defendant’s “subjective intent” is an essential element to establishing the existence of a “true threat.” The Court held that a true threat is a statement that contains a serious expression of violent intent, and the speaker need not subjectively intend her statement to be a threat. The Court noted the “fear of violence” that true threats engender, regardless of subjective intent. The Court also rejected an overbreadth challenge to § 875(c). Because the statute is limited to “true threats,” it criminalizes no protected expressive activity. The Court distinguished true threats from cross burning, which is expressive activity that can receive First Amendment protection in certain circumstances.