Insulting E-Mail to Ex-Lawyer Wasn't Unprotected True Threat or Fighting Words

From JDT v. DMT, decided Wednesday by Michigan Court of Appeal Chief Judge Michael F. Gadola and Judges Thomas C. Cameron and Matthew S. Ackerman:

Respondent was placed on probation … after pleading no contest to two violations of a personal protection order (“PPO”) that prohibited him from contacting petitioner, his ex-wife. As a condition of his probation, respondent was barred from engaging in “any assaultive, abusive, threatening, or intimidating behavior.”

The instant probation violation stemmed from a series of e-mails respondent sent over the course of a month to attorney Wayne Crowe, who represented respondent in his divorce proceedings and the PPO proceeding. {According to respondent, the attorney-client relationship ended after Crowe resigned from his law firm without notifying respondent or moving to withdraw as respondent’s counsel.}

In the initial e-mails, which were sent only to Crowe, respondent referred to him as a “pussy” and a “negligent piece of shit,” accused Crowe of “ignor[ing] child abuse” and owing respondent money, and stated, “Fuck you.” In respondent’s subsequent e-mails, he copied various other people, including the county prosecutor, and referred to Crowe as a “fraud” and a “twat,” accused Crowe of breaking the law, and accused the presiding judge of ignoring evidence of child abuse and parental alienation.

Some of the e-mails included photos, such as a photo of the presiding judge and his family at a judicial investiture and another of respondent’s children, edited to appear as though they were in a jail cell. Crowe reported the emails to respondent’s probation officer, who filed a warrant request alleging a technical probation violation for respondent’s “threatening/intimidating behavior” toward Crowe.

At the probation violation hearing, Crowe testified that the e-mails made him fear for his safety. He also testified about several telephone calls in which respondent allegedly threatened him, although he could not recall the substance of those threats. After the presentation of evidence, respondent argued that the e-mails were constitutionally protected speech. The trial court disagreed, finding that respondent intended to threaten and intimidate Crowe, the e-mails caused Crowe to feel threatened and intimidated, and respondent’s speech was not protected under the First Amendment because the language in his e-mails constituted fighting words. The trial court found respondent guilty of the probation violation [and] {sentenc[ed] him to five days’ imprisonment and extend[ed] his probation for an additional six months}.

The court of appeals reversed, concluding that the speech didn’t constitute an unprotected “true threat” of illegal conduct:

The right to free speech does not extend to “true threats,” which are defined as statements in which “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” “Excluded from this category are jests, hyperbole, or other statements whose context indicates no real possibility that violence will follow.” To establish a true threat, “[t]he State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” The true-threat exception to the First Amendment encompasses only physical threats, and our Supreme Court explicitly declined to extend the exception to encompass nonphysical threats.

Here, the trial court failed to conduct a true-threat analysis, instead focusing on Crowe’s subjective feelings of intimidation. In support of its finding that respondent’s speech was threatening and, thus, not constitutionally protected, the trial court referenced specific e-mails, including:

one sent on November 29th at 9:40 to Mr. Crowe, where [respondent] says, “You’re a negligent piece of shit. You ignore child abuse and you owe me money.” …

Another e[-]mail … sent to numerous people, including Mr. Crowe, on December 22nd, but he specifically addresses Mr. Crowe by saying, “Fuck you, Wayne. You owe me a house. Your behavior is far more inappropriate than mine. You broke the law.” And use of[,] “Fuck you, Wayne,” together with, “You’re a negligent piece of shit,” and then the final e[-]mail specifically addressed to Mr. Crowe on November 24th of 2022 at 10:35 a.m., with the subject line of, “You’re a pussy[,]” and the direct communication of[,] “Fuck you.” These are the specific terms that the Court feels are intimidating and threatening in nature when provided in context with the other e[-]mails that have been admitted and together with Mr. Crowe’s testimony regarding his conversations with [respondent] while he represented [respondent] that were threatening and inappropriate in nature.

The trial court instead should have assessed whether respondent intended “to communicate a serious expression of an intent to commit an act of unlawful violence” against Crowe or whether the purported threats were physical. The record would not have supported such a finding. Although respondent’s e-mails were offensive and inappropriate, they did not express an intent to commit an act of unlawful physical violence. Accordingly, respondent’s speech did not fall within the true-threat exception to the First Amendment.

The court also concluded the speech wasn’t unprotected “fighting words”:

Fighting words are “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction ….” Speech made over the Internet, “far removed from any potential violence,” is not “inherently likely to provoke a violent reaction.”

The trial court reasoned that,

[i]f [respondent] were to approach Mr. Crowe and say, “Fuck you. You’re a pussy,” and the other threatening things that he said, I think it’s very likely that would provoke a violent reaction. The fact that [respondent] hides behind a computer to make these threats and fighting words doesn’t excuse them or make them any different.

We disagree. Although respondent’s language might provoke violence if delivered in person, the fact that it was communicated via e-mail—”far removed from any potential violence”—renders it unlikely to provoke a violent reaction. Here, the medium of communication is a critical factor in determining whether the speech constitutes fighting words, and the trial court erred by disregarding it.

And the court rejected the prosecution’s claim “that respondent’s speech—which consisted of insults, epithets, and personal abuse—was not protected because it lacked expressive purpose and was meant solely to cause harm”:

The record contains no evidence that respondent’s speech inflicted harm on Crowe “by [its] very utterance.” Additionally, respondent’s e-mails repeatedly expressed grievances, including allegations that Crowe ignored child abuse and owed him money. Those statements demonstrate an expressive purpose beyond mere harassment. Speech with expressive content, even if offensive, does not fall within the narrow categories of historically unprotected speech. Accordingly, respondent’s speech is protected under the First Amendment.

Note that some courts have evaluated speech restrictions imposed in probation conditions under a fairly government-friendly standard (see, e.g., Johnson v. State (Ind. App. 1995)). But this case applied generally applicable First Amendment principles, not any special rule related to probation conditions.

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