On Tuesday, the Supreme Court will hear a single case; a second case had been scheduled, but it has been settled and removed from the docket. The hearing tomorrow will explore when a threat of possible crime can be prosecuted.
The “live” audio (no video) of the hearing can be found at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.
The case: United States v. Taylor The one-hour hearing will begin at 10 a.m.
Background: This case may turn out to be a good deal more significant than it appears on the surface. Initially, it involves a dispute over federal prosecutors’ power to charge someone with an attempt to commit a crime, separate from prosecution for actually going ahead with the actual crime.
That dispute has boiled down to defining three words — “threat,” “attempt” and “volent” — when the government seeks to prosecute a crime under a 1946 law (the Hobbs Act) and when the government seeks more severe punishment for that crime because a gun was used. (Added penalties for crimes of violence that included guns are permitted under an omnibus crime bill passed in 1968.)
The interaction of those two laws is intricate and complex as it arises in this case, which involves a drug crime in Virginia in which the suspects robbed the buyer before gunning him down. But, as the case has unfolded before the Supreme Court, it could have serious implications for free-speech principles under the First Amendment.
The case has been widened by briefs filed by criminal defense lawyers, who have told the Court that the federal government theory central to the case would broadly expand the idea of a threat as evidence in a criminal prosecution. It is now standard practice, those defenders contend, for criminal investigators to go into social media to try to find evidence after a crime has occurred.
Electronic posts may contain thoughts or discussions of possible violence that the suspect never intended to carry out, but prosecutors may treat those as a threat of crime and as evidence to support an attempted crime charge, the defense lawyers assert. The looser the concept of a threat, the challengers argue, the looser the standard for an attempted crime charge and the greater the chance that prosecutors will overstep the bounds of privacy in electronic communication.
Those defenders and First Amendment advocates have also told the Court that it should insist that, in order to be convicted of an attempted crime based upon a supposed threat, the suspect must have actually communicated the threat to a victim.
“By classifying uncommunicated threats as crimes of violence,” the Duke University First Amendment Clinic said in one of the briefs, “the government jeopardizes a substantial amount of private speech, from angry diary entries to frustrated tirades overheard by smart devices….These listening devices store what they hear, creating a permanent record of musings and outbursts that would have once dissipated unheard into the ether….Technology will inexorably evolve and could further externalize private thoughts and speech.”
But, back to the basics of the laws at issue in a case like this, involving a robbery. Under the Hobbs Act, robbery is committed only if it is done by taking someone else’s property, and doing so with the use of force, violence or threats. The law treats an attempt to commit robbery by force, violence or threats as a separate crime.
That law was originally passed by Congress to punish corruption among labor unions. It has since become a regular part of the law available to federal prosecutors for a wide range of crimes, including those committed by street gangs or corrupt public officials. When guns are involved, those prosecutions can lead to very long prison sentences under the 1968 law about crimes of violence.
Attempting a Hobbs Act robbery is just one of a series of crimes that were pursued in this case against a Richmond, VA, drug dealer –Justin Eugene Taylor – leading to guilty verdicts. In 2003, he and an accomplice stole money from a man who was seeking to buy marijuana from them. In the encounter, the man was shot and killed. Taylor was sentenced to 30 years in prison, for his crimes. (His accomplice is not involved in this appeal by the federal government.)
Taylor’s conviction for attempted robbery was used as the basis for finding that he had committed a violent crime that involved the use of a gun during the robbery.
However, part of Taylor’s sentence is now in doubt, because a federal appeals court ruled that attempted robbery is not the kind of violent crime that can be prosecuted under the Hobbs Act, even though robbery itself does qualify as violent under the Act. If the attempt can’t be prosecuted, it also cannot be used to prove he violated the gun law during the attempt, that court said.
The key to its ruling was that an attempt may not involve an actual use of force or a threat to use it. The attempt, it said, may be only an “attempt to threaten” force, not a direct threat. The court went even further, saying that it was inclined also to rule out prosecution for attempts to commit other crimes, such as bank robbery or carjacking, although those were not involved in Taylor’s case.
The federal government appealed to the Supreme Court, asking it to clear up a conflict among lower federal courts on the issues.
The question before the Court: Does the 1946 Hobbs Act treat as a serious crime an attempted robbery, and can such an attempt be used as the basis for heavier sentences under the 1968 serious crime law when a gun has been involved in the attempt?
Significance: The Taylor case presents a significant conflict in judicial philosophy for the Supreme Court. The modern Court is not often sympathetic to the pleas of criminals, but on the other hand it has a record of expansive interpretations of free expressions rights under the Constitution’s First Amendment, even in cases involving what otherwise would or could be criminal misconduct.
The list of such First Amendment rulings is lengthening: the Court has relied on free-speech reasoning to bar prosecution of those who stage protest marches that disrupt military funerals, a law that banned movies that depict intentional killing of small animals, a law against violent video games, a law against burning the American flag as a protest, and any law against burning the Christian cross unless there is specific proof that the intent was to intimidate someone.
Probably the most significant of those, at least for the Taylor case involving the question of threats, is the cross-burning ruling. In that decision, the Court spelled out the concept that only “true threats” can be prosecuted without violating the First Amendment free-speech guarantee. A punishable threat, it said, is one that genuinely causes fear of violence, disrupts social activity that results from such fears, and raises a distinct possibility that violence actually will occur.
Given how often federal prosecutors use the Hobbs Act to bring charges even for attempted crimes, how often threats are part of the evidence of such attempts, and how often guns are used in crimes across America, a decision in this case that imposed significant First Amendment limits on cases against threats could be a major setback for law enforcement.
If, on the other hand, the federal government were to win in this case, despite the First Amendment implications, the gathering of evidence of threats on “home surveillance techniques” would surely expand.
It is important to note, though, that no one involved in the case is advocating First Amendment protection when a “true threat” has been made and can be proven. Thus, the outcome does not appear likely to affect the use of evidence, for example, that the school shooter who recently killed four of his classmates in Oxford, Mich., can be prosecuted partly based on evidence that his threats were made clear in his drawings of killing people.
The Court closes out the current round of hearings tomorrow, with the important case on the constitutionality of publicly financed tuition for students attending parochial school. A second hearing will examine federal courts’ review of convictions in state courts.
