Prosecution Over Threat to American Federation of Teachers President Randi Weingarten Can Go Forward

From U.S. v. Spitzer (N.D. Ga.), filed by Magistrate Judge John Larkins on Oct. 9, and just affirmed Wednesday by Judge Eleanor Ross:

The indictment alleges that on July 23, 2024, Mr. Spitzer posted the following message on the website for the American Federation of Teachers, a labor union, regarding its president (“Individual #1”):

[Individual #1] is an ignorant incompetent cunt that should be worried for her safety. Fact that she is still alive. Liberal nazi deserves the bullet to head. Resign before she ends like what happened to trump at his speech. They won’t miss fat bitch.

The indictment alleges that the post violated 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce any communication containing a threat to injure another person.

Mr. Spitzer argues that assuming the allegations in the indictment were true, it fails to state an offense because the posting was not a “true threat,” or even a threat at all, and thus is protected by the First Amendment. As he sees it, the posting was simply political speech about a public figure and did not advocate the use of force or violence against Individual #1.

{In an effort to contextualize the posting, Mr. Spitzer points to an internet article in which Mike Pompeo, the former U.S. Secretary of State, described Individual #1 as “the most dangerous person in the world”; examples of “conservative politicians and commentators” criticizing her approach to school closures during the pandemic; and examples of Individual #1’s own political statements. But these are not facts that the Court can consider at this juncture because they fall outside the four corners of the indictment.}

The government responds that whether Mr. Spitzer’s posting qualified as a true threat is a question for the jury and that a pretrial determination of the sufficiency of the evidence is procedurally improper. The government further asserts that Mr. Spitzer improperly relies on facts not alleged in the indictment to contextualize the posting. The government has the better argument….

Considering the allegations on the face of the indictment—as this Court must—the Court finds that a jury could conclude that Mr. Spitzer’s alleged posting constituted a “true threat.” There are at least four separate references to harming or killing Individual #1, including: that she should be “worried for her safety”; that she “deserves a bullet to [the] head”; that unless she resigns she risks being shot similar to the attempted assassination of President Donald J. Trump; and that she will not be missed. In addition, the posting makes an oblique reference to her still being alive, which when combined with the other statements, can reasonably be interpreted as evidencing a present intent to intimidate and place Individual #1 in fear of bodily harm or death. The screed’s liberal use of epithets further tends to show that the posting was not simply on a matter of public concern, but rather a threat against Individual #1 personally….

In his reply, Mr. Spitzer relies on the Supreme Court’s decision in Watts v. United States, to argue that “political hyperbole” is not a “true threat.” True enough, but Watts is distinguishable. In that case, the Supreme Court overturned the conviction of Watts, an 18-year-old Black protester who was charged with threatening President Lyndon B. Johnson during a political rally at the Washington Monument during the 1960’s. During the protest, Watts said:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.

The Supreme Court held that considering the full context of the statement—including that it was conditional upon Watt’s joining the military (which he said he would not do) and that the listeners laughed at his statement—it was “political hyperbole,” not a true threat. In contrast, Mr. Spitzer’s alleged statement is much more threatening for the reasons explained above. Also, significantly, Watts was decided after trial, based on a developed evidentiary record, which underscores why dismissal at this juncture is not appropriate.

Accordingly, dismissal of the indictment is not warranted. But, of course, Mr. Spitzer is free to renew his challenge to the sufficiency of the evidence at trial….

Brent A. Gray and Eric John White represent the government.