Case No.: 11-13295

Date: Nov. 27, 2013

Case type: Criminal, First Amendment

Court: U.S. Court of Appeals for the Eleventh Circuit

Author of opinion: Per curiam

Lawyer for petitioner: Samuel J. Randall, Kenny Nachwalter, Miami

Lawyers for respondent: Assistant U.S. Attorneys Sally Richardson and Michael Garrett Walleisa, Southern District of Florida

Panel: Chief Judge Ed Carnes, Senior Judge Susan Black and Judge Jane Restani, U.S. Court of International Trade, sitting by designation

Originating court: Southern District of Florida

A New Port Richey woman emailed a radio talk show host that she was "planning something big" to show everyone "what the 2nd amendment is all about," then called the radio station and said her bipolar husband was about to shoot up a school. Broward County public and private schools locked down their campuses for hours.

This was Nov. 10, 2010, long before the massacre at Sandy Hook Elementary School in Newtown, Conn. No one was hurt in Broward County.

Ellisa Martinez pleaded guilty to making a threat in violation of federal law. She got a two-year sentence and was ordered to pay $5,351 to cover the lockdown costs and scaring about 250,000 students and their parents and educators.

Here's the leftover issue for the courts: Should it matter if Martinez did not mean the perceived threat as anything other than political satire? Should the First Amendment protect this kind of ill-advised but not ill-intentioned speech?

No, said the U.S. Court of Appeals for the Eleventh Circuit, which on Nov. 27 affirmed Martinez's conviction in an unsigned panel opinion. Her communications fit the "true threat" exception to free speech, according to the majority.

Defining true threats as "only those statements where the speaker subjectively intended to threaten would fail to protect individuals from the fear of violence and the disruption that fear engenders," the court stated, quoting approvingly from U.S. v. Elonis, a Sept. 19 ruling by the U.S. Court of Appeals for the Third Circuit.

Martinez's pro bono lawyer, Sam Randall of Kenny Nachwalter in Miami, wants the U.S. Supreme Court to review the Eleventh Circuit decision and choose a subjective standard.

"People every day say things in the heat of passion without fully thinking through what they say or what they mean and how other people are going to interpret it," Randall said, adding that the decision "imposes an unreasonable restraint on free speech, especially in the political arena."

Anatomy Of A Threat

A former teacher in Los Angeles, Martinez has a political science degree from the University of California. After moving to New Port Richey, she followed the career of Joyce Kaufman, a conservative talk show host on WFTL-AM in Pompano Beach.

During the 2010 midterm elections, Kaufman backed congressional candidate Allen West. At a rally, Kaufman extolled West's support for the Second Amendment, saying, "If ballots don't work, bullets will."

On the night of Nov. 10, 2010, days after West's election, Martinez was up late nursing a migraine with medicine and wine. She saw TV coverage of Kaufman telling a Kentucky audience she supported the "extermination" of left-wing politicians.

Martinez had "some impulse control issues" stemming from a car accident, according to Randall.

His client sent an anonymous email to Kaufman saying, in part, "I was so thrilled to see you speak in person for Congressman-elect West. … I felt your plan to organize people with guns in the hills of Kentucky and elsewhere was a great idea. … I am so glad you support people who think like me."

She promised "something big around a government building here in Broward County, maybe a post office, maybe even a school."

A few hours later, WFTL officials got an anonymous call from a woman who said her husband had sent the email and was planning to open fire at a school. The officials contacted the police, who instituted a "Code Red" shutdown for about three hours.

Martinez was quickly identified as the caller and author of the email and arrested. Her ex-husband (she was divorced) had nothing to do with the incident.

Sea Change

When Martinez pleaded guilty, she reserved the right to challenge on First Amendment grounds the indictment that charged her with violating 18 U.S.C. Section 875(c).

"She didn't intend her email to be interpreted the way that it was," Randall said. "She believed that the satire in it would be apparent."

Randall argued that in a 2003 decision, Virginia v. Black, the U.S. Supreme Court reversed a long line of cases requiring only an objective intent to threaten. The ruling invalidated a conviction for violating a state law by burning a cross with the "intent of intimidating any person or group."

The justices did not speak with one voice, but a plurality held that since the statute had no requirement of mens rea, or guilty knowledge, it covered more than true threats and "created an unacceptable risk of the suppression of ideas."

From this Randall extrapolated that Black made a subjective-intent analysis part of the true threats doctrine. The Eleventh Circuit disagreed.

"Black did not work a 'sea change,' tacitly overruling decades of case law by importing a requirement of subjective intent into all threat-prohibiting statutes," the opinion said.

The court noted it was joining the four circuits that have addressed the issue by sticking with an objective definition of a true threat: "a communication that, when taken in context, 'would have a reasonable tendency to create apprehension that its originator will act according to its tenor.' "

To date the Ninth Circuit in U.S. v. Cassel in 2005 is the only federal appellate court to fully embrace the subjective-intent analysis.

Still, Randall believes the circuits could use some guidance from above. He said there are subjective-intent stirrings in the Seventh and Tenth circuits and a "persuasive" dissent in the Fourth Circuit. He said the Third Circuit sets a different standard for verbal conduct like cross-burning than for pure speech.

"The Third would give more protection to someone who stuck up their middle finger than someone who actually said the words."