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9th Circuit rejects free-speech challenge to land-sale law

By David L. Hudson Jr.
First Amendment Center research attorney

Because of a constitutional problem with the jury instructions, a federal appeals court reversed the conviction of a California man charged with intimidating prospective buyers of federally owned land.

Paul Kent Cassel, who lives in the Mojave Desert near Randsburg, Calif., allegedly made numerous negative comments to several people looking to buy land near his property in 2000 because he did not want neighbors. Prosecutors contend Cassel told individuals that the Bureau of Land Management was operated by a bunch of “crooks,” that the land at issue was a toxic-waste dump, and that devil-worshippers lived nearby. Prosecutors also allege that he told another prospective buyer that if anything were built on the lot, “it would definitely burn.”

In November 2000, prosecutors charged Cassel with violating federal law 18 U.S.C. § 1860, which prohibits intimidation to hinder, prevent, or attempt to hinder people from buying or attempting to buy federal land.

In April 2001, a jury convicted Cassel of violating the statute. On appeal, Cassel argued that the statute was unconstitutional on its face because it did not comport with the First Amendment. He also contended that his conviction should be set aside because the jury instructions were constitutionally deficient.

In its May 24, 2005, decision in U.S. v. Cassel, a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously rejected Cassel’s facial challenge but found that the jury instructions were flawed enough that his conviction must be overturned.

Cassel argued that because the statute does not, on its face, contain a requirement that the speaker intend to convey a true threat, the statute is unconstitutional. The appeals court disagreed, reasoning that it could construe the statute to require such intent.

“Having held that intent to threaten is a constitutionally necessary element of a statute punishing threats, we do not hesitate to construe 18 U.S.C. § 1860 to require such intent,” the 9th Circuit wrote. The appeals court determined that “speech may be deemed unprotected by the First Amendment as a ‘true threat’ only upon proof that the speaker subjectively intended the speech as a threat.”

Although the 9th Circuit rejected Cassel’s facial challenge to the statute, it still ruled in his favor and reversed his conviction. The court did so because it found that the jury instructions were flawed.

One jury instruction provided:

Intimidation is to make a person timid or fearful through the use of words and conduct that would put an ordinary, reasonable person in fear or apprehension for the purpose of compelling or deterring legal conduct of that person.

The 9th Circuit reasoned that “it is not enough that the defendant intend to influence the potential bidder; rather, he must intend to do so by means of a threat.” Furthermore, the court determined that the instruction failed to tell the jury that the intimidation must be “inflicted by the defendant.”

The court concluded: “Although Cassel’s facial challenge to 18 U.S.C. § 1860 fails, his conviction was based on jury instructions that inadequately described the elements of the crime. Accordingly, the district court’s judgment of conviction is VACATED and the case is REMANDED for a new trial.”

Fresno-based attorney Joan Jacobs Levie, who represented Cassel before the 9th Circuit, was disappointed that the appeals court did not accept her facial challenge of the statute. She also questioned why the appeals court did not address one of her key arguments.

“In this case, the comments — even if Mr. Cassel actually made them — were idle threats, not true threats. The words were very speculative and didn’t meet any imminence requirement. What he allegedly said was rhetoric and hyperbole, not a true threat.”

Levie contended that because Cassel’s comments, even if made, did not say that harm would be imminent — or immediately happen to the alleged victims — they could not constitute a true threat.

A call placed to the government’s attorney was not returned.


True threats

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