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United States v. Ziobrowski

United States District Court, D. Massachusetts

July 23, 2019

UNITED STATES OF AMERICA
v.
BRANDON JAMES ZIOBROWSKI

          MEMORANDUM AND ORDER

          Denise J. Casper U.S. District Judge

         I. Introduction

         Defendant Brandon James Ziobrowski (“Ziobrowski”) has moved to dismiss the indictment against him. D. 43. For the reasons stated below, the Court DENIES the motion.

         II. Factual Background

         For consideration of a motion to dismiss an indictment, the Court presumes the allegations of an indictment to be true. United States v. Dunbar, 367 F.Supp.2d 59, 60 (D. Mass. 2005); United States v. Bohai Trading Co., Inc., 45 F.3d 577, 578 n.1 (1st Cir. 1995). Accordingly, the Court summarizes the relevant facts based on the allegations in indictment, D. 3.

         Ziobrowski has a Twitter account with the username @Vine_II. D. 3 at ¶ 2. His account has more than 400 followers. Id. As the government alleges, Ziobrowski's tweets have become more violent and threatening. D. 3 at ¶ 3. In or about February 2018, he began posting tweets that promoted violence against law enforcement and, approximately one month later, he began posting threatening messages regarding agents employed by the U.S. Immigration and Customs Enforcement agency (“ICE”). D. 3 at ¶¶ 3-4. On July 2, 2018, Ziobrowski tweeted the message that is the subject of the indictment: “I am broke but I will scrounge and literally give $500 to anyone who kills an ice agent. @me seriously who else can pledge get in on this let's make this work.” D. 3 at ¶ 6. The Department of Homeland Security's Current and Emerging Threats Center saw the tweet and sent a report to law enforcement agencies throughout the United States. D. 3 at ¶ 9. On July 11, 2018, Twitter suspended Ziobrowski's account following a request from the Federal Bureau of Investigation's Joint Terrorism Task Force in Boston. D. 3 at ¶ 10.

         III. Procedural History

         Based on the allegations in the indictment, a grand jury has indicted Ziobrowski for one count of transmitting in interstate commerce a communication containing a threat to injure the person of another in violation of 18 U.S.C. § 875(c). D. 3. On September 6, 2018, Ziobrowski was arraigned on the charge and has pled not guilty. D. 16. Ziobrowski has now moved for dismissal of the indictment. D. 43. The Court heard oral argument on the motion on July 17, 2019 and took the matter under advisement. D. 50.

         IV. Discussion

         In support of in his motion to dismiss, D. 43, Ziobrowski makes three principal arguments: 1) the criminal threats statute, 18 U.S.C. § 875(c), under which he has been charged, is unconstitutional on its face because of its application potentially criminalizes political speech; 2) the statute is unconstitutional as applied to Ziobrowski because the charged communication is protected by the First Amendment; and 3) Ziobrowski's communication is protected political speech and not a threat prohibited by § 875(c).

         The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. Amend. I. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339 (2010). Thus, “[t]he First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed” and “[c]ontent-based regulations are presumptively invalid.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992) (internal citations omitted). This prohibition on regulations that target the content of speech, such as political views, however, does not mean that speech cannot be regulated for other features, such as obscenity or threats. See id. at 388.

         True threats, as relevant here, are not protected speech under First Amendment. Accordingly, whether Ziobrowski's facial challenge and as-applied challenge to § 875(c) succeeds turns upon the nature of the conduct that the statute criminalizes and the nature of the Ziobrowski's alleged conduct as charged in the indictment.

         A. Facial Challenge to the Constitutionality of 18 U.S.C. § 875(c) Fails

         The Court addresses Ziobrowski's facial challenge to the statute first. Section 875(c) provides that: “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” 18 U.S.C. § 875(c). The language of this statute is similar to that of 18 U.S.C. § 871, which criminalizes threats against the President and Vice President of the United States. Id. (providing, in relevant part, that whoever “knowingly and willfully otherwise makes any such threat against the President, . . . [or] Vice President . . ., shall be fined under this title or imprisoned not more than five years, or both”). The Supreme Court's affirmation of the constitutionality of § 871 on its face is instructive here. Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam). In considering and reversing a conviction under § 871, the Supreme Court noted that “[c]ertainly the statute under which petitioner was convicted is constitutional on its face.” Id. at 707. It noted, however, that “a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind” and that “[w]hat is a threat must be distinguished from what is constitutionally protected speech.” Id. The Court concluded that § 871, facially met this standard since “the statute initially requires the Government to prove a true ‘threat,' but further ruled that “[w]e do not believe that the kind of political hyperbole indulged in by petitioner fits ...


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