Fault Lines
16 January 2019
joke threats

When a Drunken Joke Nets a Conviction, Presume Nothing

March 16, 2017 (Fault Lines) — There’s an alcoholic beverage, enjoyed by some on the beach in Florida, called a “Molly Cocktail.” And then there’s an incendiary device known as a Molotov cocktail. What’s the difference between the two? Fifteen years, as Robert Perez learned to his grave dismay. As Justice Sonia Sotomayor described it, Perez’s prison sentence may prove nothing more than the end result of a drunken joke and a Florida law.

In Florida, it’s a felony “to threaten to throw, project, place, or discharge any destructive device with intent to do bodily harm to any person or with intent to do damage to any property of any person.” What could possibly be wrong about such a law? Threats.

Threats are speech. A statute that restricts threats is a content-based restriction on speech. A content-based restriction is presumptively unconstitutional, and must pass strict scrutiny to be upheld. If the statute forbids only constitutionally unprotected speech, or if the amount of protected speech it forbids is not real and substantial in relation to the unprotected speech, the statute passes strict scrutiny.

“Constitutionally unprotected speech” is speech in one of a few categories that the Supreme Court has recognized as historically unprotected. These include incitement, obscenity, defamation, speech integral to criminal conduct, fighting words, child pornography, fraud, true threats, and speech presenting some grave and imminent threat the government has the power to prevent.

All of these words have specific constitutional meanings, though, and just calling speech by one of these phrases does not make it unprotected. What you think is obscene is not necessarily “obscenity,” and what hurts your feelings is probably not “defamation.” Speech does not become “integral to criminal conduct” just because a legislature forbids that particular speech.

Under the Florida statute, there is no requirement that the speaker have an intent to commit the threatened act, or even to be taken seriously by anyone hearing the threat. A person could be convicted “irrespective of whether his words represented a joke, the ramblings of an intoxicated individual, or a credible threat,” wrote Justice Sotomayor in her concurrence to the denial of certiorari in Perez v. Florida.

But not all threats are “true threats.” Some specific intent — an intent that people take the words seriously, an intent to intimidate — is required to turn run-of-the-mill constitutionally protected threats into unprotected “true threats.”

And it appears that Mr. Perez (who made it remarkably far for a pro se litigant in the Supreme Court) had no such specific intent — at least, the prosecutor at trial did not prove that he did, instead acknowledging that Perez might have been “just a harmless drunk guy at the beach.”

So Mr. Perez had a strong as-applied (“my speech was not a true threat, and therefore was constitutionally protected”) challenge to the statute. He also had an as-written (“the statute forbids a real and substantial amount of protected speech”) challenge, in which Justice Sotomayor, at least, would have been interested.

Why, then, with this issue of obvious interest to her, did Justice Sotomayor concur, rather than dissent from the denial of certiorari? “[B]ecause the lower courts did not reach the First Amendment question […]” Everybody below failed to spot, or failed to force, the First Amendment issue.

Most lawyers wouldn’t have spotted or forced the issue, though — most penal statutes are constitutional, so it’s safe in most cases to treat the statute as constitutional.

“Most … most … most …” Most is not “all,” and the cost of betting that an unconstitutional statute is valid is a wrongly imprisoned client. Mr. Perez, for example, is doing fifteen years.

While a murder statute or a drug statute is probably not unconstitutional, laws that restrict speech are suspect, and if they restrict speech based on its content (as opposed to its time, place, or manner) they are presumptively unconstitutional. So presuming a speech-restricting statute to be constitutional can be exactly the wrong course. Imagine the chagrin of Mr. Perez’s lawyers when, a year or five down the road, section 790.162 gets held unconstitutional in somebody else’s case.

They might then say — and Mr. Perez would probably agree with them — that it would have been better had they required the Florida courts to rule on the facial unconstitutionality of the statute, so that Justice Sotomayor could have sunk her teeth into the issue.

There are speech-restricting statutes that pass constitutional muster. A statute forbidding soliciting a child for sex, for example, is constitutional, but only if it does not restrict a real and substantial amount of other speech. And there’s the rub for the lawyer with the client facing time for words (or gestures or pictures): Even if the statute appears to be directed at unprotected speech, and even if the defendant’s own speech is unprotected, the statute may be unconstitutional as written, void from its creation and incapable of application to either the defendant or anyone else.

The usual presumption of constitutionality might be wrong, the title of the statute might not accurately reflect the breadth of the restriction, and the facial unconstitutionality might be buried in the overbroad statutory definitions of terms that you would expect to mean something narrower.

The lawyer who does not want to have to explain, a year or five down the road, to his client (or to the family of the client who died in prison) how the client was prosecuted under a void statute has to cast a very critical eye on the words of the legislature, read those words in the way that would cover as much speech as possible, and then decide whether any of that speech is constitutionally protected.

If there is an argument that the statute restricts protected speech based on its content, make the challenge. Protect yourself, your client and, no less importantly for generations to come, the First Amendment.

2 Comments on this post.

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  • Keith
    19 March 2017 at 5:25 pm - Reply

    If the statute does get challenged in a year and ruled unconstitutional for vagueness, will that benefit this poor bastard then?

    • Mark Bennett
      19 March 2017 at 5:35 pm - Reply

      Keith, I am not a Florida lawyer, but the law is generally that an unconstitutional statute is void ab initio, so that someone convicted under it should get relief after it is held unconstitutional.