LORD DENMAN, (in C.J. O’Connel v. R. ,1884): “Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case.”
Judge Matz was very, very careful to not use the words of the law [No, person of another, and [transmit]] was ever mentioned to the jury.
"The district court must formulate jury instructions so that
they fairly and adequately cover the issues presented, correctly
state the law, and are not misleading." Abromson v. American
Pac. Corp., 114 F.3d 898, 901 (9th Cir. 1997); see also Mockler v.
Multnomah County, 140 F.3d 808, 812 (9th Cir. 1998).
18 U.S.C. § 875(c) requires proof of transmission in interstate commerce. United States
v. Oxendine, 531 F.2d 957 (1976)
And Judge Howard Matz knew, at this point of the trial, that the government had produced no proof of an element of the crime to establish jurisdiction of a transmission across a state line (interstate), rendering the case a state Tenth Amendment issue.
His only choice was to dismiss the case before it even went to a jury. The law required it. But hey, the law required them to not commit fraud, but who's following the law anymore, not these guys! Or this guy.
"[Killercop] is accused of transmitting a threat in interstate or foreign commerce."
Title 18: 875(c), as presently drafted, applies to pure speech; it
imposes a criminal penalty of up to 5 years of imprisonment,
plus a fine, for the mere utterance or writing of what is, or
may be perceived as, a true statement of fact—without anything
more. 875(c) is so broadly drafted, the government is not required
to prove anything before the district court.
Neither the government or I dispute that the Act "seek[s] to
regulate 'only . . . words.' " Broadrick v. Oklahoma, 413 U.S.
601, 612 (1973) (quoting Gooding v. Wilson, 405 U.S. 518, 520 (1972)).
875(c) therefore concerns me because of its potential for
setting a precedent whereby the government may proscribe
speech solely because it is called true, While lies go free.
This rule the government would urge you to apply in
order to uphold 875(c) would, if left unchecked, significantly
enlarge the scope of existing categorical exceptions to First
Amendment protection. All previous circumstances in which
speech has been found proscribable involve not just speech,
but additional elements that serve to narrow what
speech may be punished, like time and place and manner.
Indeed, 875(c) is unconstitutional in that it's nature is
selective, in that only the government can say if it is true.
Like saying you are a witch. You are then left to prove otherwise.
The sad fact is, governments become corrupted, and power over
speech is the most dangerous to give any branch. Which is why it
was forbidden and placed off bounds under the very First
Amendmet under the Bill of Rights.
Perhaps, in context, many of these
threats are within the local government's legitimate reach. But the
Federal government cannot decide that some speech or "any" type of speech may not be said,
without a reviewing court's undertaking a thoughtful analysis of the constitutional concerns raised by such government
interference with speech.
Finding no appropriate way to avoid the First Amendment
question I pose, I hold that the speech proscribed by
875(c) is not sufficiently confined to fit among any
categories of speech previously held to be beyond the
First Amendment's protective sweep.
I apply strict
scrutiny review to 875(c), and hold it unconstitutional
because it is not narrowly tailored enough to achieving a compelling
Federal governmental interest, and it is vague and overbroad,
and because No means No.
