Amicus Curiae Brief — Jamal Knox, Petitioner v. Pennsylvania

No. 18-949

In the

Supreme Court of the United States

JAMAL KNOX,

Petitioner,

V.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE AND BRIEF OF THE

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

JEFFREY T. GREEN

CO-CHAIR AMICUS

COMMITTEE

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1600 L Street, NW

Washington, DC 20036

(202) 872-8600

MELISSA ARBUS SHERRY

Counsel of Record

MARGARET A. UPSHAW

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

melissa.sherry@lw.com

Counsel for Amicus Curiae

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE IN SUPPORT OF

PETITIONER

Pursuant to Supreme Court Rule 37.2(b), the

National Association of Criminal Defense Lawyers

(NACDL) respectfully requests leave to file the

attached brief. Petitioner has consented to the filing

of this brief, and a blanket letter of consent has been

submitted to the Clerk of this Court. Amicus is filing

this motion because respondent has declined to

consent.

NACDL is a nonprofit voluntary professional bar

association that works on behalf of criminal defense

attorneys to ensure justice and due process for those

accused of crime or misconduct. It has a nationwide

membership of many thousands of direct members,

and up to 40,000 with affiliates. NACDL’s members

include private criminal defense lawyers, public

defenders, military defense counsel, law professors,

and judges.

NACDL is the only nationwide

professional bar association for public defenders and

private criminal defense lawyers.

NACDL is

dedicated to advancing the proper, efficient, and just

administration of justice.

NACDL files numerous amicus briefs each year in

this Court and other federal and state courts, seeking

to provide assistance in cases that present issues of

broad importance to criminal defendants, criminal

defense lawyers, and the criminal justice system as a

whole. This case presents a question of great

importance to NACDL and the clients its attorneys

represent. The uncertainty regarding the proper

standard for threat prosecutions poses serious

ii

constitutional concerns. And NACDL is well-suited to

provide additional insight into the implications of the

decision below for criminal defendants, as well as the

way in which our criminal justice system compounds

the concerns associated with that decision.

Respectfully submitted,

JEFFREY T. GREEN

CO-CHAIR AMICUS

COMMITTEE

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1600 L Street, NW

Washington, DC 20036

(202) 872-8600

MELISSA ARBUS SHERRY

Counsel of Record

MARGARET A. UPSHAW

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

melissa.sherry@lw.com

Counsel for Amicus Curiae

iii

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE IN SUPPORT OF

PETITIONER ....................................................... i

TABLE OF AUTHORITIES ..................................... iv

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT .........................................................2

ARGUMENT ...............................................................3

I.

THE

QUESTION

PRESENTED

IMPLICATES A SIGNIFICANT NUMBER

OF STATUTES AND PROSECUTIONS .............3

II. THE DECISION BELOW ALLOWS THE

GOVERNMENT

TO

CRIMINALIZE

SPEECH THAT IS OBJECTIVELY NONTHREATENING ...................................................6

A. The Decision Below Contravenes This

Court’s Case Law And First Amendment

Principles ........................................................7

B. The Existing State Of The Law Paired

With The Realities Of Our Criminal

Justice System Risks Suppressing

Speech ...........................................................10

CONCLUSION ..........................................................15

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Bordenkircher v. Hayes,

434 U.S. 357 (1978) ..............................................13

City of Houston v. Hill,

482 U.S. 451 (1987) ..........................................9, 11

Elonis v. United States,

135 S. Ct. 2001 (2015)........................................2, 3

Ford v. City of Yakima,

706 F.3d 1188 (9th Cir. 2013)..............................11

Lafler v. Cooper,

566 U.S. 156 (2012) ..............................................12

Lewis v. City of Tulsa,

775 P.2d 821 (Okla. Crim. App.

1989) .....................................................................11

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018)......................................9, 10

Missouri v. Frye,

566 U.S. 134 (2012) ..............................................12

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ................................................9

Padilla v. Kentucky,

559 U.S. 356 (2010) ..............................................12

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ................................................9

v

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Doggart,

906 F.3d 506 (6th Cir. 2018)............................6, 13

United States v. Dutcher,

851 F.3d 757 (7th Cir.), cert. denied,

138 S. Ct. 166 (2017)..............................................6

United States v. Houston,

792 F.3d 663 (6th Cir. 2015)..................................6

United States v. Jeffries,

692 F.3d 473 (6th Cir. 2012), cert.

denied, 571 U.S. 817 (2013) .............................9, 10

United States v. LaFontaine,

847 F.3d 974 (8th Cir. 2017)..................................5

United States v. Lynch,

881 F.3d 812 (10th Cir. 2018)................................5

United States v. Mabie,

862 F.3d 624 (7th Cir. 2017), cert.

denied, 138 S. Ct. 1452 (2018) ...............................5

United States v. Martinez,

800 F.3d 1293 (11th Cir. 2015)..............................6

United States v. Parr,

545 F.3d 491 (7th Cir. 2008), cert.

denied, 556 U.S. 1181 (2009) ...........................8, 10

United States v. Petras,

879 F.3d 155 (5th Cir.), cert. denied,

139 S. Ct. 373 (2018)..............................................5

vi

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Stevens,

881 F.3d 1249 (10th Cir. 2018), cert.

denied, 139 S. Ct. 353 (2018) .................................5

United States v. White,

670 F.3d 498 (4th Cir. 2012)..................................8

United States v. White,

810 F.3d 212 (4th Cir.), cert. denied,

136 S. Ct. 1833 (2016)............................................6

United States v. Wynn,

827 F.3d 778 (8th Cir.), cert. denied,

137 S. Ct. 604 (2016)..............................................6

Virginia v. Black,

538 U.S. 343 (2003) ................................................2

Watts v. United States,

394 U.S. 705 (1969) ......................................7, 8, 10

FEDERAL STATUTES

18 U.S.C. § 115(a)(1)(B) ..............................................3

18 U.S.C. § 247(a)(2) ...................................................4

18 U.S.C. § 248(a)........................................................4

18 U.S.C. § 871(a)....................................................3, 5

18 U.S.C. § 875(c) ................................................4, 5, 6

18 U.S.C. § 876(c) ....................................................4, 5

vii

TABLE OF AUTHORITIES—Continued

Page(s)

18 U.S.C. § 877 ............................................................4

18 U.S.C. § 878(a)........................................................4

18 U.S.C. § 879 ............................................................3

18 U.S.C. § 1503(a)......................................................4

18 U.S.C. § 1505 ..........................................................4

18 U.S.C. § 1509 ..........................................................4

18 U.S.C. § 1512(a)(2) .................................................4

49 U.S.C. § 46504 ........................................................5

STATE STATUTES

Ala. Code § 13A-10-15 .................................................4

Alaska Stat. § 11.56.807 .............................................4

Ariz. Rev. Stat. Ann. § 13-1202 ..................................4

Ark. Code Ann. § 5-13-301 ..........................................4

Cal. Penal Code § 422(a) .............................................4

Colo. Rev. Stat. § 18-3-206 ..........................................4

Conn. Gen. Stat. § 53a-62 ...........................................4

D.C. Code § 22-407 ......................................................4

Del. Code Ann. tit. 11, § 621 .......................................4

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Fla. Stat. § 836.10 .......................................................4

Ga. Code Ann. § 16-11-37 ...........................................4

Haw. Rev. Stat. § 707-716...........................................4

Idaho Code § 18-6710 ..................................................4

720 Ill. Comp. Stat. 5/12-9 ..........................................4

Iowa Code § 712.8 .......................................................4

Kan. Stat. Ann. § 21-5415 ...........................................4

Ky. Rev. Stat. Ann. § 508.080 .....................................4

La. Stat. Ann. § 14:285(A) ..........................................4

Mass. Gen. Laws ch. 275, § 2 ......................................4

Md. Code Ann., Crim. Law § 3-708 ............................4

Me. Stat. tit. 17-A, § 209 .............................................4

Mich. Comp. Laws § 750.411i .....................................4

Minn. Stat. § 609.713 ..................................................4

Mo. Rev. Stat. § 574.125 .............................................4

N.C. Gen. Stat. § 14-277.1 ..........................................4

N.D. Cent. Code Ann. § 12.1-17-04 .............................4

N.H. Rev. Stat. Ann. § 631:4.......................................4

ix

TABLE OF AUTHORITIES—Continued

Page(s)

N.J. Stat. Ann. § 2C:12-3 ............................................4

N.M. Stat. Ann. § 30-20-12 .........................................4

N.Y. Penal Law § 240.30 .............................................4

Neb. Rev. Stat. § 28-311.01.........................................4

Nev. Rev. Stat. § 200.571 ............................................4

Okla. Stat. tit. 21, § 1378 ............................................4

18 Pa. Cons. Stat. § 2706 ............................................4

R.I. Gen. Laws § 11-42-4 .............................................4

S.C. Code Ann. § 16-3-1040 ........................................4

S.D. Codified Laws § 22-8-13 ......................................4

Tenn. Code Ann. § 39-17-308 ......................................4

Tex. Penal Code Ann. § 22.07 .....................................4

Utah Code Ann. § 76-5-107 .........................................4

Va. Code Ann. § 18.2-60 ..............................................4

Vt. Stat. Ann. tit. 13, § 1702 .......................................4

W. Va. Code § 61-6-24 .................................................4

Wash. Rev. Code § 9.61.160 ........................................4

Wis. Stat. § 940.203 ....................................................4

x

TABLE OF AUTHORITIES—Continued

Page(s)

Wyo. Stat. Ann. § 6-2-505 ...........................................4

OTHER AUTHORITIES

Rachel E. Barkow, Separation of Powers

and the Criminal Law, 58 Stan. L.

Rev. 989 (2006) ....................................................13

Stephanos Bibas, Regulating the PleaBargaining Market: From Caveat

Emptor to Consumer Protection, 99

Cal. L. Rev. 1117 (2011) ......................................13

Bureau of Justice Statistics, Federal

Criminal Case Processing Statistics,

http://www.bjs.gov/fjsrc/ (last visited

Mar. 1, 2019) ..........................................................5

Dep’t of Justice, Memorandum from the

Attorney General for All Federal

Prosecutors, Department Charging

and Sentencing Policy (May 10,

2017),

https://www.justice.gov/opa/pressrelease/file/965896/download ..............................13

Eisha Jain, Arrests as Regulation,

67 Stan. L. Rev. 809 (2015) .................................11

xi

TABLE OF AUTHORITIES—Continued

Page(s)

Sean Rosenmerkel et al., Bureau of

Justice Statistics, Felony Sentences

in State Courts, 2006—Statistical

Tables (rev. 2010),

https://www.bjs.gov/content/pub/pdf/

fssc06st.pdf ...........................................................12

Transcript of Oral Argument, Elonis v.

United States, 135 S. Ct. 2001 (2015)

(No. 13-983) ............................................................8

University at Albany, Sourcebook of

Criminal Justice Statistics Online,

https://www.albany.edu/sourcebook/

pdf/t5342010.pdf (last visited Mar.

1, 2019) .................................................................12

U.S. Dep’t of Justice, Justice Manual

(updated Feb. 2018),

https://www.justice.gov/jm/jm-927000-principles-federalprosecution#9-27.300 ...........................................13

U.S. Sentencing Guidelines Manual (U.S.

Sentencing Comm’n 2018),

https://www.ussc.gov/sites/default/

files/pdf/guidelinesmanual/2018/GLMFull.pdf ..................................14

Ronald F. Wright, Trial Distortion and

the End of Innocence in Federal

Criminal Justice, 154 U. Pa. L. Rev.

79 (2005) .........................................................12, 14

INTEREST OF AMICUS CURIAE1

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary

professional bar association that works on behalf of

criminal defense attorneys to ensure justice and due

process for those accused of crime or misconduct.

NACDL was founded in 1958. It has a nationwide

membership of many thousands of direct members,

and up to 40,000 with affiliates. NACDL’s members

include private criminal defense lawyers, public

defenders, military defense counsel, law professors,

and judges.

NACDL is the only nationwide

professional bar association for public defenders and

private criminal defense lawyers.

NACDL is dedicated to advancing the proper,

efficient, and just administration of justice. NACDL

files numerous amicus briefs each year in this Court

and other federal and state courts, seeking to provide

assistance in cases that present issues of broad

importance to criminal defendants, criminal defense

lawyers, and the criminal justice system as a whole.

This case presents a question of great importance

to NACDL and the clients its attorneys represent.

The number of criminal threat statutes and

prosecutions, the unsettled state of the law governing

1

Counsel of record received timely notice of the intent to

file this brief, and petitioner’s counsel filed a blanket letter of

consent.

Respondent’s counsel withheld consent and,

accordingly, amicus has submitted a motion for leave to file. No

counsel for a party authored this brief in whole or in part; and

no such counsel, any party, or any other person or entity—other

than amicus curiae and its counsel—made a monetary

contribution intended to fund the preparation or submission of

this brief.

2

“true threats,” the insufficient protection afforded by

the standard adopted by the majority below, and the

fact that the vast majority of criminal prosecutions

end in guilty pleas together present a real risk that

arrests and prosecutions will be based on

constitutionally protected but offensive or unpopular

speech. NACDL has a strong interest in advocating

for clear rules that do not allow the government to

criminally punish objectively non-threatening speech.

INTRODUCTION AND SUMMARY OF

ARGUMENT

There is widespread and longstanding confusion

about what qualifies as a “true threat” such that pure

speech can be criminalized without running afoul of

the First Amendment.

Such uncertainty is

problematic in criminal law as a general matter

because the public needs to be on notice of what acts

constitute crimes. But in the specific context of

statutes that criminalize pure speech, such

uncertainty is untenable. Only this Court can clarify

the constitutionally required standard, and ensure

that unpopular or offensive speech is not silenced by

a rule that allows the government to punish speech

that is objectively non-threatening.

The danger here is real and pervasive. There are

dozens of federal and state statutes that criminalize

pure speech when that speech qualifies as a threat.

These statutes are responsible for hundreds of

prosecutions each year. And threat prosecutions have

persisted with great frequency in the wake of this

Court’s recent decision in Elonis v. United States, 135

S. Ct. 2001 (2015).

The split decision of the Pennsylvania Supreme

Court below exemplifies the confusion among the

3

lower courts with regard to the First Amendment

“true threat” standard. And the majority’s mistaken

belief that “an objective, reasonable-listener standard

. . . is no longer viable” (Pet. App. 19a) is particularly

troubling. If that were so, a person could be jailed for

saying something that no reasonable person would

perceive to be a genuine threat. Whatever level of

subjective intent (or mens rea) is appropriate or

required, this Court’s case law and basic First

Amendment principles impose an objective baseline

before speech can qualify as a proscribable “true

threat.” And the realities of our criminal justice

system—including broad police discretion and the

overwhelming prevalence of guilty pleas—reinforce

the need for an objective backstop to carefully

preserve the line between true threats and unpopular

or offensive, but constitutionally protected, speech.

ARGUMENT

I. THE QUESTION PRESENTED IMPLICATES

A SIGNIFICANT NUMBER OF STATUTES

AND PROSECUTIONS

This case presents the Court with a much-needed

opportunity to clarify what it means to be a “true

threat” such that pure speech can be criminalized

without running afoul of the First Amendment. As

the petition explains (at 8-14), widespread confusion

among the lower courts on this issue prompted the

grant of certiorari in Elonis v. United States, 135

S. Ct. 2001 (2015), and persists in the wake of that

decision. The existing uncertainty about the reach of

statutes that criminalize and, more broadly, chill pure

speech is itself problematic. The frequency with

which the question arises only further highlights the

need for this Court’s review.

4

To start, there are dozens of criminal “threat”

statutes on the books. Federal law criminalizes

threats against various government officials (18

U.S.C. §§ 115(a)(1)(B), 871(a), 879); foreign officials,

official guests, and internationally protected persons

(id. § 878(a)); jurors (id. § 1503(a)); and witnesses,

victims, and informants (id. § 1512(a)(2)). Federal

law also criminalizes threats transmitted in

interstate commerce (id. § 875(c)), and by mail (id.

§§ 876(c), 877), as well as threats that obstruct

proceedings before government agencies (id. § 1505),

or the rights and duties associated with court orders

(id. § 1509). And it prohibits threats in a variety of

other circumstances too. See, e.g., id. §§ 247(a)(2),

248(a). In addition, the vast majority of states

criminalize threating communications.2

2

See, e.g., Ala. Code § 13A-10-15; Alaska Stat.

§ 11.56.807; Ariz. Rev. Stat. Ann. § 13-1202; Ark. Code Ann. § 513-301; Cal. Penal Code § 422(a); Colo. Rev. Stat. § 18-3-206;

Conn. Gen. Stat. § 53a-62; Del. Code Ann. tit. 11, § 621; D.C.

Code § 22-407; Fla. Stat. § 836.10; Ga. Code Ann. § 16-11-37;

Haw. Rev. Stat. § 707-716; Iowa Code § 712.8; Kan. Stat. Ann.

§ 21-5415; Ky. Rev. Stat. Ann. § 508.080; Me. Stat. tit. 17-A,

§ 209; Mass. Gen. Laws ch. 275, § 2; Mich. Comp. Laws

§ 750.411i; Minn. Stat. § 609.713; Neb. Rev. Stat. § 28-311.01;

Nev. Rev. Stat. § 200.571; N.H. Rev. Stat. Ann. § 631:4; N.J.

Stat. Ann. § 2C:12-3; N.Y. Penal Law § 240.30; N.C. Gen. Stat.

§ 14-277.1; N.D. Cent. Code Ann. § 12.1-17-04; Okla. Stat. tit. 21,

§ 1378; 18 Pa. Cons. Stat. § 2706; Tenn. Code Ann. § 39-17-308;

Tex. Penal Code Ann. § 22.07; Utah Code Ann. § 76-5-107; Vt.

Stat. Ann. tit. 13, § 1702; Va. Code Ann. § 18.2-60; Wash. Rev.

Code § 9.61.160; Wis. Stat. § 940.203; Wyo. Stat. Ann. § 6-2-505.

Several other states criminalize threats made by telephone,

Idaho Code § 18-6710; La. Stat. Ann. § 14:285(A); N.M. Stat.

Ann. § 30-20-12; threats directed at public officials, 720 Ill.

Comp. Stat. 5/12-9; Md. Code Ann., Crim. Law § 3-708; 11 R.I.

Gen. Laws § 11-42-4; S.C. Code Ann. § 16-3-1040; or “terrorist”

5

These are not dormant statutes. Between 2004

and 2014, on average, more than 20 defendants were

charged under 18 U.S.C. § 871(a) with making threats

against the President each year.3 During that same

time frame, about 150 people were arrested and

booked

annually

for

making

“threatening

communications” under federal law.4 And although

the statistics are not readily available, many more

were likely charged for the same under state law.

Indeed, in the three years since Elonis was

decided, 215 cases available on Westlaw have cited 18

U.S.C. § 875(c) (which prohibits transmitting threats

in interstate commerce), and 83 cases have cited 18

U.S.C. § 876(c) (which prohibits transmitting threats

by mail). More than 300 decisions have cited Elonis

itself. And there are nearly a dozen post-Elonis

reported decisions from the courts of appeals

involving threat and intimidation prosecutions.5

threats, Mo. Rev. Stat. § 574.125; S.D. Codified Laws § 22-8-13;

W. Va. Code § 61-6-24.

3

See Bureau of Justice Statistics, Federal Criminal Case

Processing Statistics, http://www.bjs.gov/fjsrc/ (last visited Mar.

1, 2019) (follow “Defendants charged in criminal cases: trends”

hyperlink; then select year range of 2004-2014, variable of

“Filing offense,” and offense of “Threats against the President”).

4

See Bureau of Justice Statistics, Federal Criminal Case

Processing Statistics, http://www.bjs.gov/fjsrc/ (last visited Mar.

1, 2019) (follow “Persons arrested and booked: trends” hyperlink;

then select year range of 2004-2014, variable of “Offense,” and

offense of “Threatening communications”).

5

See, e.g., United States v. Lynch, 881 F.3d 812, 814 (10th

Cir. 2018) (prosecution under 49 U.S.C. § 46504); United States

v. Petras, 879 F.3d 155, 159 (5th Cir.) (same), cert. denied, 139 S.

Ct. 373 (2018); United States v. Stevens, 881 F.3d 1249, 1251

(10th Cir. 2018) (prosecution under 18 U.S.C. § 875(c)), cert.

6

As significant as these numbers are, they only

scratch the surface. Arrests and prosecutions rarely

result in publicly available court decisions. And there

is no way to quantify the constitutionally protected

speech that is chilled by the existing state of the law.

The various federal and state threat statutes should

be enforced based on a clear and generally applicable

standard that satisfies the constitutional minimum.

II. THE DECISION BELOW ALLOWS THE

GOVERNMENT TO CRIMINALIZE SPEECH

THAT

IS

OBJECTIVELY

NONTHREATENING

Beyond the widespread uncertainty that currently

exists, this Court’s review is also needed because the

majority below announced a rule that allows the

government

to

criminalize

objectively

nonthreatening speech. Whatever a “true threat” entails,

it must at least start from the baseline of being an

objective threat. A “subjective only” standard cannot

be squared with this Court’s case law, basic First

denied, 139 S. Ct. 353 (2018); United States v. Doggart, 906 F.3d

506, 510 (6th Cir. 2018) (prosecution under 18 U.S.C. § 875(c));

United States v. Mabie, 862 F.3d 624, 628 (7th Cir. 2017)

(prosecution under 18 U.S.C. §§ 875(c), 876(c)), cert. denied, 138

S. Ct. 1452 (2018); United States v. LaFontaine, 847 F.3d 974,

976 (8th Cir. 2017) (prosecution under 18 U.S.C. § 875(c));

United States v. Dutcher, 851 F.3d 757, 760-61 (7th Cir.)

(prosecution under 18 U.S.C. § 871(a)), cert. denied, 138 S. Ct.

166 (2017); United States v. Wynn, 827 F.3d 778, 780-81 (8th

Cir.) (prosecution under 18 U.S.C. §§ 875(c), 115(a)(1)(B)), cert.

denied, 137 S. Ct. 604 (2016); United States v. White, 810 F.3d

212, 215-16 (4th Cir.) (prosecution under 18 U.S.C. § 875(b) and

(c)), cert. denied, 136 S. Ct. 1833 (2016); United States v.

Houston, 792 F.3d 663, 665 (6th Cir. 2015) (prosecution under 18

U.S.C. § 875(c)); United States v. Martinez, 800 F.3d 1293, 1294

(11th Cir. 2015) (prosecution under 18 U.S.C. § 875(c)).

7

Amendment principles, or the realities of our criminal

justice system.

A. The Decision Below Contravenes This

Court’s Case Law And First Amendment

Principles

Courts should not be choosing between an

“objective” and a “subjective” standard. Whatever the

required mens rea (the question left open in Elonis),

pure speech cannot be treated as an unprotected “true

threat” if the speech is objectively non-threatening.

The court below erred in discarding that baseline.

Watts v. United States, 394 U.S. 705 (1969), is a

useful starting point. That case involved the federal

statute criminalizing threats against the President.

Id. at 705-06. As the case came to the Court, the

dispute was over the meaning of the “willfulness”

requirement—i.e., the mens rea.

The courts of

appeals disagreed over whether “the ‘willfullness’

requirement of the statute implied that a defendant

must have intended to carry out his ‘threat.’” Id. at

707. The Court, however, found it unnecessary to

decide that question because the statute, construed in

light of the First Amendment, “initially requires the

Government to prove a true ‘threat.’” Id. at 708. To

determine whether the Government had done so, the

Court looked to whether petitioner’s statement,

“[t]aken in context,” could have been “interpreted” as

an actual threat. Id. That is, before wading into the

applicable mens rea, there first must have been a true

“threat” understood from the vantage point of a

reasonable listener. Because there was no such

threat, petitioner’s conviction could not stand.

That understanding of the baseline need for an

objective “threat” was also reflected in some of the

8

briefing and argument in Elonis. As Justice Breyer

framed the issue: “What he does, and he has to do

this or he’s not guilty, is he has to communicate a true

threat,” i.e., “a threat that a reasonable person would

understand to convey a serious expression of an

intention to inflict bodily injury or take the life of an

individual.” Transcript of Oral Argument 11:18-12:4,

Elonis v. United States, 135 S. Ct. 2001 (2015) (No.

13-983). Justice Breyer then went on to discuss the

“second question” which “has nothing to do with what

you do” but, rather, “has to do with the state of mind.”

Id. at 5-8; see also Elonis United States Br. 35-37,

2014 WL 4895283 (Sept. 29, 2014) (discussing

rationale for objective test). And some judges,

including the dissenting judge below, have recognized

the independent role of an objective standard and the

need for a hybrid approach. See, e.g., Pet. App. 37a38a (Wecht, J., concurring and dissenting)

(advocating “two-pronged approach” and explaining

that the objective “prong . . . allows courts to

determine objectively whether a statement is a threat

and not political hyperbole, as was the case in Watts,

or an instance of sophomoric utterances that could not

be taken seriously”); United States v. White, 670 F.3d

498, 524 (4th Cir. 2012) (Floyd, J., concurring in part

and dissenting in part) (advocating a “two-pronged

test” with an objective and subjective component); cf.

United States v. Parr, 545 F.3d 491, 500 (7th Cir.

2008) (suggesting possibility that, to “satisfy the

constitutional concern,” the “statement at issue must

objectively be a threat and subjectively be intended as

such”), cert. denied, 556 U.S. 1181 (2009).

Separate and apart from the appropriate

subjective standard, an objective baseline is

necessary to comport with fundamental First

9

Amendment principles. As Watts recognized, these

are statutes that criminalize “pure speech.” 394 U.S.

at 707. And although this Court has carved out “true

threats” from the constitutional protection otherwise

afforded to such speech, there is a significant amount

of unpleasant, aggressive, or politically disfavored

speech that still warrants First Amendment

protection. Indeed, there is a “profound national

commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open,

and that it may well include vehement, caustic, and

sometimes

unpleasantly

sharp

attacks

on

government and public officials.” New York Times Co.

v. Sullivan, 376 U.S. 254, 270 (1964).

As this Court recently recognized, there are

“difficult questions about the scope of First

Amendment protections when speech is made in

connection with, or contemporaneously to, criminal

activity.” Lozman v. City of Riviera Beach, 138 S. Ct.

1945, 1953-54 (2018). When the speech is itself the

criminal activity, it becomes all the more important to

carefully preserve those protections. See City of

Houston v. Hill, 482 U.S. 451, 462-63 (1987) (“The

freedom of individuals verbally to oppose or challenge

police action without thereby risking arrest is one of

the principle characteristics by which we distinguish

a free nation from a police state.”).

It is therefore critical to focus on why “true

threats” are unprotected. Two key reasons: to

“protect[] individuals from the fear of violence” and

“from the disruption that fear engenders.” R.A.V. v.

City of St. Paul, 505 U.S. 377, 388 (1992); United

States v. Jeffries, 692 F.3d 473, 480 (6th Cir. 2012)

(“Much like their cousins libel, obscenity, and fighting

words, true threats ‘by their very utterance inflict

10

injury’ on the recipient.” (citation omitted)), cert.

denied, 571 U.S. 817 (2013). If no reasonable person

would “fear” violence, then much of the rationale for

excluding such speech from First Amendment

protection in the first place no longer exists. Id.

(explaining that the objective standard “complements

the explanation for excluding threats of violence from

First Amendment protection”).

That some courts have questioned whether Watts’s

fundamental baseline inquiry has been “retire[d]”

(Parr, 545 F.3d at 500)—or, like the majority below,

held that “an objective, reasonable-listener standard

. . . is no longer viable” (Pet. App. 19a)—only

underscores the need for this Court’s guidance.

B. The Existing State Of The Law Paired

With The Realities Of Our Criminal

Justice System

Risks Suppressing

Speech

The absence of a clear standard and, worse still,

the Pennsylvania high court’s rejection of any

objective inquiry, is particularly problematic in light

of the realities of our criminal justice system. The

risk that police officers may use their arrest power to

punish and suppress unpopular speech is all too real.

And the fact that the vast majority of prosecutions

will end in a guilty plea, rather than a jury verdict,

only further compounds the chilling effect of a

standard that is unclear, under-protective, or both.

As this Court recently acknowledged, there is a

real “risk that some police officers may exploit the

arrest power as a means of suppressing speech.”

Lozman, 138 S. Ct. at 1953. That concern is nothing

new. As Justice Douglas noted in his concurrence in

Watts, “[s]uppression of speech as an effective police

11

measure is an old, old device, outlawed by our

Constitution.” 394 U.S. at 712. And this Court has

“repeatedly invalidated laws that provide the police

with unfettered discretion to arrest individuals for

words or conduct that annoy or offend them.” Hill,

482 U.S. at 465-66.

Without an objective backstop, police would have

virtually unfettered discretion to arrest an individual

for offensive or politically unpopular speech based

solely on what the officer believes the person truly

intended. Imagine, for example, a protestor outside

an abortion clinic who tells a woman entering the

clinic, “You’ll get what’s coming to you! You better

watch out!” While that statement probably would not

satisfy the objective standard set forth in Watts, a

police officer could nevertheless find probable cause

that the protestor intended to place the woman in fear

of bodily harm, and arrest the protestor on that basis.

Allowing arrests in such circumstances risks

silencing constitutionally protected speech. Cf. Lewis

v. City of Tulsa, 775 P.2d 821, 822 (Okla. Crim. App.

1989) (reversing disorderly conduct conviction for

“picketing an abortion clinic” and yelling at people

entering the clinic that “it was murder. You should

feel guilty about what you’re doing”).

The risk of suppressing speech is not mitigated by

the possibility that a prosecutor would decline to

prosecute or that a jury might not convict. Even

without further proceedings, arrests themselves are

enormously disruptive to individuals’ lives and more

than sufficient to chill protected speech. See generally

Eisha Jain, Arrests as Regulation, 67 Stan. L. Rev.

809 (2015) (detailing consequences of arrests); Ford v.

City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013)

(recognizing that an arrest “would chill a person of

12

ordinary firmness from engaging in future First

Amendment activity”).

And, as this Court has recognized, the “reality” is

that “criminal justice today is for the most part a

system of pleas, not a system of trials.” Lafler v.

Cooper, 566 U.S. 156, 169-70 (2012). The percentage

of federal criminal cases culminating in a plea of

guilty or nolo contendere has risen since 1980, as

many cases that previously would have gone to trial

are now resolved through guilty pleas instead—

including cases that would have resulted in

acquittals. See Ronald F. Wright, Trial Distortion

and the End of Innocence in Federal Criminal Justice,

154 U. Pa. L. Rev. 79, 90-91, 105-06 (2005). Guilty

pleas account for 97% of federal convictions.6

Similarly, approximately 94% of state felony

convictions resulted from pleas of guilty or nolo

contendere.7 In resolving difficult constitutional

questions, courts should thus take account of “the

central role plea bargaining plays in securing

convictions and determining sentences.” Lafler, 566

U.S. at 170; see also Missouri v. Frye, 566 U.S. 134,

143-44 (2012); Padilla v. Kentucky, 559 U.S. 356, 37374 (2010).

Defendants plead guilty at such high rates

because broad criminal statutes and severe sentences

give prosecutors enormous leverage over them. See

6

See University at Albany, Sourcebook of Criminal

Justice

Statistics

Online,

Table

5.34.2010,

https://www.albany.edu/sourcebook/pdf/t5342010.pdf

(last

visited Mar. 1, 2019).

7

Sean Rosenmerkel et al., Bureau of Justice Statistics,

Felony Sentences in State Courts, 2006—Statistical Tables, at 1

(rev. 2010), https://www.bjs.gov/content/pub/pdf/fssc06st.pdf.

13

Wright, supra, at 85-86. Prosecutors have the power

to determine the length of a defendant’s likely

sentence through their charging decisions—and are

free to invoke the threat of greater punishment to

induce a plea of guilty. See Bordenkircher v. Hayes,

434 U.S. 357, 364-65 (1978); see also, e.g., United

States v. Doggart, 906 F.3d 506, 508 (6th Cir. 2018)

(explaining that after the district court rejected

defendant’s attempt to plead guilty to making a

threat in interstate commerce, a crime carrying a

sentence of no more than five years, the government

added charges and obtained convictions for multiple

solicitation offenses resulting in a sentence of almost

20 years). Indeed, one of the very purposes of longer

statutory sentences is to enhance the alreadysignificant power of prosecutors by giving them more

“plea-bargaining

chips.”

Stephanos

Bibas,

Regulating the Plea-Bargaining Market:

From

Caveat Emptor to Consumer Protection, 99 Cal. L.

Rev. 1117, 1128 (2011); see also Rachel E. Barkow,

Separation of Powers and the Criminal Law, 58 Stan.

L. Rev. 989, 1034 (2006) (“[L]onger sentences exist on

the books largely for bargaining purposes.”).

And federal prosecutors are required to use every

chip at their disposal. In May 2017, the Attorney

General issued a memorandum announcing that “it is

a core principle that prosecutors should charge and

pursue the most serious, readily provable offense.”

Dep’t of Justice, Memorandum from the Attorney

General for All Federal Prosecutors, Department

Charging and Sentencing Policy (May 10, 2017),

https://www.justice.gov/opa/press-release/file/965896/

download. In 2018, the Department of Justice

incorporated that memorandum into its new Justice

Manual. See U.S. Dep’t of Justice, Justice Manual

14

§ 9-27.300

(updated

Feb.

2018),

https://www.justice.gov/jm/jm-9-27000-principlesfederal-prosecution#9-27.300.

On the other side of the ledger, significant

sentencing discounts are available to defendants who

comply with prosecutors’ demands. See, e.g., U.S.

Sentencing Guidelines Manual § 3E1.1(a) (U.S.

Sentencing Comm’n 2018), https://www.ussc.gov/

sites/default/files/pdf/guidelines-manual/2018/GLMFull.pdf

(decreasing the offense level where the defendant

“clearly demonstrates acceptance of responsibility for

his offense”); id. § 5K1.1 (providing for departure from

the guidelines recommendation “[u]pon motion of the

government stating that the defendant has provided

substantial assistance in the investigation or

prosecution of another person”). These developments

have made it extraordinarily costly for a criminal

defendant to refuse a guilty plea. It is therefore

unsurprising that “fewer [have] paid the price each

year.” Wright, supra, at 85.

Particularly in the context of unpopular or

offensive speech, how many defendants are going to

risk trial, and the attendant possibility of a

substantially higher sentence, on the chance that a

jury might believe that he or she did not intend to

place anyone in fear?

Without the additional

protection of an objective baseline, there is a

meaningful risk that constitutionally protected

speech will be punished or that speakers will instead

choose not to speak at all. And the risk of silence is

that much more pronounced because the existing

state of the law provides more confusion than

guidance, depriving speakers of the breathing room

needed to exercise their First Amendment rights.

15

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JEFFREY T. GREEN

CO-CHAIR AMICUS

COMMITTEE

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1600 L Street, NW

Washington, DC 20036

(202) 872-8600

MELISSA ARBUS SHERRY

Counsel of Record

MARGARET A. UPSHAW

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

melissa.sherry@lw.com

Counsel for Amicus Curiae

March 6, 2019