Blog: E-mail to court employee ruled hyperbole, not true threat

Wednesday, June 30, 2010

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A federal court in Louisiana has characterized a man’s e-mail to a bankruptcy court employee as a “cry for help” rather than a true threat. But the court’s decision does little to clarify when expression crosses the line from protected speech to unprotected threats.

On Jan. 29, 2010, Ashton R. O’Dwyer sent an e-mail to Sean McGinn, an employee of the Bankruptcy Court for the Eastern District of Louisiana. At the time O’Dwyer was filing for bankruptcy. The e-mail told McGinn to tell the bankruptcy judge, Jerry Brown, that O’Dwyer did not have money for his anti-depressant medication. It also read in part:

“Maybe my creditors would benefit from my suicide, but suppose I become ‘homicidal’? Given the recent ‘security breach’ at 500 Poydras Street [address of the district court], a number of scoundrels might be at risk if I DO become homicidal. Please ask his Honor to consider allowing me to refill my prescription at Walgreen’s, and allowing me to pay them, which is a condition for my obtaining a refill.”

When McGinn received the e-mail, he contacted U.S. Marshals. O’Dwyer was arrested later that day for violating a federal anti-threat law. O’Dwyer argued that his e-mail did not constitute a true threat but was simply hyperbole.

U.S. District Judge Donald E. Walter agreed with O’Dwyer and granted a motion to dismiss the indictment in his June 24th opinion in United States v. O’Dwyer. Walter noted that within the jurisdiction of the 5th U.S. Circuit Court of Appeals, the definition for true threats — which varies from circuit to circuit — is “in its context [the communication] would have a reasonable tendency to create apprehension that its originator will act according to its tenor.”

Walter also noted that O’Dwyer had a history of sending e-mails in which he would use coarse language but make no threats. He added that O’Dwyer’s statements in his e-mail did not compare to the “explicit threats” made in other threat cases decided by the 5th Circuit, such as “I will kill” and “keep f—ing with me and Judgment Day will come.”

“While the Defendant’s language may be inappropriate, this Court does not find that the plain language of the allegedly threatening e-mail even rises to that of a threat let alone a true threat,” Walter concluded.

The decision seems to stand for the principle that in true-threat cases, the court will weigh the words carefully and consider matters on a case-by-case basis.

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