From U.S. v. Spitzer (N.D. Ga.), initiated by Magistrate Judge John Larkins on Oct. 9, and only this Wednesday endorsed by Judge Eleanor Ross:
The indictment contends that on July 23, 2024, Mr. Spitzer posted a message on the American Federation of Teachers’ website, addressing the union’s leader (referred to as “Individual #1”).
[Individual #1] is an ignorant incompetent cunt that should be worried for her safety. Fact that she is still alive. Liberal nazi deserves the bullet to head. Resign before she ends like what happened to trump at his speech. They won’t miss fat bitch.
The indictment asserts that the post violated 18 U.S.C. § 875(c), which criminalizes the transmission across state lines of any communication that contains a threat to injure another person.
Mr. Spitzer contends that assuming the indictment’s facts are true, the filing fails to charge a crime because the posting does not constitute a “true threat,” or even any threat at all, and therefore falls under First Amendment protection. He characterizes the post as political speech about a public figure that did not advocate violence or coercion against Individual #1.
{In an effort to contextualize the posting, Mr. Spitzer cites an internet article in which Mike Pompeo, the former U.S. Secretary of State, described Individual #1 as “the most dangerous person in the world”; instances of “conservative politicians and commentators” criticizing her stance on school closures during the pandemic; and examples of Individual #1’s own political statements. However, these items are not facts the Court may consider at this stage because they lie beyond the four corners of the indictment.}
The government counters that whether Mr. Spitzer’s posting qualified as a true threat is a question for the jury and that conducting a pretrial assessment of the evidence’s sufficiency is procedurally improper. The government also submits that Mr. Spitzer improperly relies on facts not alleged in the indictment to provide context for the posting. The government’s argument is stronger….
Examining the allegations on the face of the indictment—as this Court must—the Court concludes that a jury could find that Mr. Spitzer’s asserted posting constituted a “true threat.” The record contains at least four explicit references to harming or killing Individual #1, such as: she should be concerned for her safety; she deserves a gunshot to the head; if she does not resign she risks being shot in a manner reminiscent of the attempted assassination of President Donald J. Trump; and she will not be missed. Moreover, the post’s subtle allusions to her remaining alive, combined with these others statements, can reasonably be read as signaling an intent to intimidate and to place Individual #1 in fear of bodily harm or death. The frequent insults further suggest that the message was not merely a matter of public discourse but a personal threat directed at Individual #1….
In response, Mr. Spitzer relies on the Supreme Court’s decision in Watts v. United States to argue that “political hyperbole” does not rise to the level of a “true threat.” That is correct in general, but Watts is distinguishable. In that case, the Supreme Court vacated Watts’s conviction for threatening President Lyndon B. Johnson at a 1960s rally near the Washington Monument. During the protest, Watts stated:
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.
The Court held that, when viewed in full context—including the conditional nature of Watts’s statement (dependent on his refusal to join the military) and the audience’s reaction—it qualified as political hyperbole rather than a genuine threat. By contrast, the statement attributed to Spitzer is far more menacing for the reasons outlined above. It is also notable that Watts was decided after trial, with a developed evidentiary record, which underscores why dismissing the indictment at this stage is inappropriate.
Accordingly, the indictment should not be dismissed. Nevertheless, Mr. Spitzer remains free to renew his challenge to the sufficiency of the evidence at trial….
Brent A. Gray and Eric John White represent the government.
