United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper U.S. District Judge
Brandon James Ziobrowski (“Ziobrowski”) has moved
to dismiss the indictment against him. D. 43. For the reasons
stated below, the Court DENIES the motion.
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.
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.
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.
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).
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.
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.
Facial Challenge to the Constitutionality of 18 U.S.C.
§ 875(c) Fails
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 ...