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Anthrax Hoax Isn't Protected Free Speech

By Robyn Hagan Cain on December 06, 2012 | Last updated on March 21, 2019

This week, the Ninth Circuit Court of Appeals upheld a Sacramento man’s conviction for mailing fake anthrax to people to promote his book about anthrax.

Quelle surprise! That sort of thing isn’t protected by the First Amendment.

Marc Keyser wrote "Anthrax: Shock and Awe Terror" to spread the message that an anthrax attack could wreak havoc on the country. In an attempt to secure publicity for the book, Keyser did what any normal person nutcase would do: He mailed a package to the Sacramento News & Review in 2007. The package contained a letter, a CD of Keyser's book, and a small spray can with a label stating "ANTHRAX" and displaying a biohazard symbol. The package prompted employees to call 911 and to evacuate the building, and numerous emergency agencies responded.

FBI agents paid Keyser a visit, explained that he could be prosecuted for such shenanigans, and warned him not to do it again. He agreed.

(You see where this is going, right?)

The next year, Keyser sent approximately 120 similar packages to various news outlets, elected officials, and businesses. The packages contained a CD printed with a picture of Colin Powell, the book title, and Keyser's name. The CD contained over half of the contents of Keyser's book. He attached a white sugar packet to the front of the CD with the sugar markings covered by a label stating "Anthrax" in large letters, "Sample" in smaller letters, and an orange and black biohazard symbol.

In 2009, Keyser was convicted of three counts of committing an anthrax hoax and two counts of mailing threatening communications. He was sentenced to four years and three months in prison, The Associated Press reports.

Keyser argued on appeal that he couldn't be convicted for his mailed statements because the government can't restrict expression based on "its message, its ideas, its subject matter, or its content."

Threats, however, generally do not receive First Amendment protection.

Whether or not a statement may be considered a threat is governed by an objective standard: Would the proverbial "reasonable person" realize that the statement would be interpreted as a serious expression of intent to harm or assault? It doesn't matter if the speaker never intended to follow through.

Here, the Ninth Circuit concluded that Keyser's mailings satisfied the objective standard for a threat, and that he had the requisite subjective intent to threaten when he mailed the packages. Therefore, Keyser's threats weren't protected by the First Amendment, and his convictions did not violate the Constitution.

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