the first two arguments of our brief that is the the constitutional issue surrounding the state of mind jury instruction and the sufficiency of the indictment it's played i will rest on the briefs for the remaining two arguments that's a good sufficien let me amplify on that of course it predates the black decision and i think kozma was focusing on a subjective intent instruction far different than the one question court knows it was an eight seventy one threat against the present case the court was very concerned obviously about the destruction of government function and i think actually said in its opinion this would be more difficult for the prosecution to prove the subjective intent instruction requested in aloneness and indorsed and some other circuits was not in an subjective intent to carry out the threat it was simply a subjective intent to threaten and i think that's an important distinction and it actually distinguishes some of the courts that have gone the other one but there are a lot of a lot of conditions caviar us that come with that so called objective test as well but it's your position that they are insufficient comply with virginia the black that's correct your honor i mean my view is that the black constitutional terms in finding that that crime facia evidence requirement was inappropriate and it spoke about the speaker's intent and the speaker's meaning in articulating it standard it seems to me by the plain words of the statute it's not the case it's natural reading it's going to the subjective intent of the speaker and tell me tell me what the objective test is deficient why is that constitutionally infirm and why does it not protect against political hyperbole or matters and jokes and stuff like that because you have to consider the circumstances the context reasonable person all of that where where we left what is left out and the objective tests that you think the context of this case your honor this case involved facebook postings as you know given the explosion in social media presumably courts are going to see more and more of threat cases in this digital context as the court i think i presume the court knows these facebook postings are fragmented there's not a lot of context and of course the audience is somewhat unknown and uncertain in this case the alleged victims were not facebook friends that means the disjunction between what i is the speaker intend and what the audience or the objective person may perceive that what actually is greater what if your client had said exactly what he said on a facebook post but instead he had happened upon his ex wife on market street and said the identical things to her face i think the the issue would still be did he intend to threaten her or not and now because you're saying if he did it on market street he's equally he's equally immune from criminal prosecution because he did not subjectively intend to threaten her well your honor i think context is all important and that's why i asked is he is he guilty or not on market street well one have to determine whether from the context and a face to face this if interaction certainly is a different more targeted interaction then a facebook posting would have to determine from all from the words it doesn't alter his subject of intense well if this is as i understand your theory as long as he subjectively intends not to utter a true threat he's either joking or playing games or whatever he might just be crazy as long as he doesn't intend to utter a true threat that he cannot be convicted of the crime yes your honor if i took to by analogy if i offer to  sell you the brooklyn bridge and i in my mind for whatever distorted reason in good faith believe i own the bridge you may still be out the money but a good faith defense would save me from a criminal mail fraud conviction a similarly for drift found beyond a reasonable doubt that the speaker even on the street was joking then yes that's each should not be criminalized and that's the demarcation i think that the subject standard vs the object of creates but what if what if the jury found on the street that your client wasn't true if the jury found that he intended to convey a message which itself conveyed intent to harm then he and just you know this is not a greater burden for the prosecution because absent a confession as in many other cases where subjective intent is the standard  one infers or gets to the intent of the defendant by all the circumstances on the street versus facebook the tone of voice onlookers a direct interaction versus shouting out to the crowd you know  him and if if an objective test though includes contacts circumstances certain caveats why i'm still not sure why that's constitutional and permissible amendment when you think about other categorical areas carved out of the first amendment such as defamation or incitement to lawlessness there's a subjective component circumstantial evidence with piece of under your under your standard your test circumstantial evidence would be sufficient to show that and i think yes your honor i don't think that this case with your is from any other criminal case explain that to me your honor when i say when i mean i'm sorry when i read negligence what i mean is that if a speaker negligent in carelessly or negligently utters words negligently thinks these words will not be are not meant to be threatening or wouldn't be construed as threatening then that leaves it under the objective test to the audience to determine whether he's are it just seems like such a tricky thing to use the subjective test because i couldn't couldn't somebody go up to a a law enforcement officer like the agent in this case and say well she came to the door right so next time she comes the door your her i'm i'm going to kill you and she says well thank you very much you just violated federal law come with me your classes but will know i didn't mean it i mean i was i was hot i  lost control my temper i'm a nonviolent person look at my record i've never i've never harmed a puppy i didn't mean it was it was a negligent utterance he wins if the jury bought that  that story that that evidence yes if a jury found beyond reasonable doubt that he did not have subjectively intent to threaten why should that be a violation of the criminal it just seems like you may be giving the jury even more power by asking the jury to crawl into the  auditors mind rather than asking the jury to consider whether the objective we reasonable to conclude that in fact the statement i'm going to kill you or i ought to kill you is is a true threat i think juries do that all the and other criminal cases the fact finder via the judge or the jury would look to the words themselves would look to the the circumstances of the interaction  is it directed toward a person or to chat it out to the crowd you know how it's how it's communicated would look to the response of the recipient in other words in response the department's hypothetical if the i agent was truly scared and as and as a professional took it seriously and thought this was a threat i think that would be a relevant consideration all of that ultimately gets wrapped into determination of sector rather than subjective absolutely context is important and it would it's applicable to both the object of and the subjective standard but it seems to me at the end of the day we need to ask the jury to find beyond reasonable doubt that the speaker intended a threat if we're going to something in jail for his speech now we put some more time on are there do you want to address jury and that the grand jury considered all the elements and it seems to me in this first amendment context where one needs openly to have a true threat that the government should in the i needs to in the indictment include the words of the threat indeed on the motion to dismiss in the court below the judge trial judge ultimately determines a reasonable jury could find a true threat he could not do that on the four that's right i think you're restricted to the four corners of the indictment and the words the threat should have been articulated it's no great burden to the government they do it all the time all kinds of cases why it wasn't done here i don't know but i think it was  before the district court i know you challenge of the indictment before trial but i thought it was on the fact that the indictment did not include subjective intent to threaten mean that you would agree that white if we were to follow the fourth circuit's decision and white that would be fatal to your argument you are you believe white was wrongly decided by correct i would go with the  floyd and really if as i look at the authorities you on your side of the circuit split to the extent there is one you've got the night circuit decision in bagus area and in your favor correct it and i take it you're also endorsing the nicer can approach of treating threats against the president her high government official differently from threats of private individuals your honor the good fair question and you know the l the first amendment logic as well as think doesn't necessarily need you to that conclusion that an eight seventy one charge should be done differently but i do understand the point that the president hold precise with respect to the issues before the court it's our position that they quote the district court correctly instruct the jury regarding the objective standard that is stated in khosla in fact the words that the judge used in his instructions are verbatim from cosmos well that's the easy part of the case the hard part is what black to the call exactly and we want back the wire guage that i'm struggling with is a quote true threat in compas those statements where the speaker means to communicate a serious expression of an intent to commit an act of lawful violence to a particular individual or group of individuals why does what i just read not support mr levy says well that language in fact is identical to that that is the same expression and it's very carefully parsed out as this court then explain in greater length because it means to communicate is the intent that also defeats mr levine suggestion you can have a negligent utterance you have to have the intent is the intent to state what your state what you're stating then is a serious expression of an intent to commit an act of violence there's a reason that you have all of those words that a court could have simply said you need to intend to threaten somebody then say that it says means to communicate a serious expression so in other words the intent is making the statement and what the statement is is objective is what a reasonable is what the speaker reasonably would understand a group of people to think and what this prevents and this is fully consistent with the constitution what this prevents is exactly what happened in this case is a defendant saying well yes i totally understand everything i'm saying is threatening and it's terrifying people but i'm an artist or i'm a rapper or whatever it is that this are a lot of things and therefore are not healthy it's important to look at why true threats are not protected by by the constitution as we know from supreme court t j there are very limited number of categories of speech that are unprotected but they're there and we're dealing with one of them there's fighting words there's libel there's profanity and there's true friends and the reason should threaten our protect and in each of these categories the supreme court has said we're doing a balancing we see the minimal social utility of what it is you're sending weighed against the harm that might be cause and we've decided as a categor scared and found a hiding place that she would have to go to the other problem is what the reaction might might provoke a violent reaction those concerns have nothing to do with the subject of intent that the speaker they have everything to do with the meaning of his words and how a reasonable person would see them really fall if you're correct on that it would seem that that somebody would always be under criminal jeopardy simply by utterings of they were by typing something is  i mean the target is the president if i'm drafted the supreme court in explaining why that's not a true threat on me focused on the reaction of the recipients in talk about subjective intent at all the supreme court said it's a political rally the people laughed they saw this funny condition that the person stated that was told to the audience was one that the speaker himself said would never happen he said if they draft me i'm never going to show up anyway so the supreme court is saying you are protected there if you look at the context and then what we're left with of course is a jury but yes there is criminal responsibility if you say something knowing not negligent and you can reasonably for see that this could cause harm it's appropriate for law enforcement to address that if mr awana says i'm going after a kindergarten class and he said hell hath no fury like a crazy man in a kindergarten class the suggestion here of the appellant is that we walk away we say oh reasonable person would see the need to respond to and be terrified now the other important thing to say about vs black your honor is that argument is really on two levels one of jurisprudential which is we do have binding precedent of this court so far i've been talking about the merits of whether this is unprotected speech but it's our view the cost has not been reversed and is therefore binding on this panel that the question your honor asked if i understand is does virginia versus black over rule cause my every generation's black is an evil about the threats that the the court is not asked to address a statute says a section eight seventy five and so i do want to touch on that for a moment if i can virginia versus black is about and the problem that the supreme court i don't know if i was there it says we could debate this but this is what the supreme court says they cross burning it can be constitutionally protected speech that there are instances of cross burning that are not  insanity and they give a movie as an example or some other kind of political expression at a rally and so the problem in virginia versus black was you had the virginia statute that said prospering by itself can be enough to to be a true threat and the supreme court says no that's not true because you could have cross burning that is completely protected no limitation is placed at all and it's in that context that the plurality gives those words that your honor was quoting the court is not asked to address at all the threats that threats statute such as eight seventy five does have limitations it by as it's been interpreted by this court in casa has the reasonable person limitations that does place exactly the restriction that the supreme court said was wanting in black and the restriction is you have to show that a reasonable person the speaker would perceive that a reasonable person would see this as a threat i think there's a very and so therefore virginia vs black just isn't there it doesn't address this case and i think it gives it more weight than it can bear even the same appellate courts disagree that's right on the score on that at the moment as i see it right as the ninth circuit has helped that it does change the threat definition and our statement is that it does not get into the nuts and bolts of virginia versus by the way i have the fourth sixth and eighth circuits at the moment all reach a different conclusion and we say those cases and are moving says you can you know you can make a neg see that somebody would interpret you know an interesting thing if you look at the instruction that they actually the defense actually requested in this case it really was an objective test also found page forty four of the appendix the first thing it said was a reasonable person would take the statement as a serious expression of contempt for college or that's possible and then the new part that it added was a reasonable person would perceive such expression as being communicated to affect some change or achieve some goal through intimidation that's objective also that a reasonable person would understand this person needs to threaten not to do something else so even in trying to fashion a jury instruction the defense was unable to write an instruction ever dress as mr a law says we are wary of the potential for persons making threats to hide behind a defense that they did not understand their words to be and so it can always be the case that someone can say i'm sorry i just meant something else even though i you know we've known that for over one hundred years and the same principles apply that apply fighting words it's an objective test because somebody cannot stand up in a crowded theater and yell fire and then say oh i'm sorry i didn't mean to cause a riot or incite a catastrophe i actually was performing my new song of fire and i decided to introduce it at that moment that's not a defense because this is categor are protected speech and a true threat meaning a statement that a reasonable person would see as a serious expression of intent and inflict injury isn't protected for very valid important reasons it's not protected by the first remember some of the cases conduct and circumstances it's one one factor to consider oh i think it's tough when a factor to consider and i think it does make sense you have again it's all about context the words i'm going to kill you spoken by an actor in a movie is not a threat  and spoken seriously face to face or even on facebook can be a threat and that's where the jury comes in a properly constructed jury has to look at all the circumstances imminence is important whether it's conditional what the circumstances are that lead to the not concerned about it but it's not necessary and it will be a significant change changing first amendment law that's not consistent either with the law of this court or of the supreme court the statement again of virginia versus black was necessary because they were threatening and intimidating to another person and is being negligent about that but again that's inconsistent with cause my which says we look to what a reasonable person would understand his speech to be and by the way cosmos is more protective of defendant's right than the statements expressed in other circuits and we have no objection to that because the looks at the reasonable speaker test in the speaker would reasonably understand his words other courts have said it's sufficient to just look at the reasonable listen but mr levine is advocating more protection as i understand it which is a somebody could say i'm just foolish and careless i don't think mr hollis would say if you look at mr the cross examination mr alarmist at the end of the day he pretty much  he knew he was terrifying people but he thought it was ok because he had this quote online persona and that made everything ok because he was using a rap name instead of the name everybody knew him how do we if we have a reasonable speaker test  perceive things so i think it it's all part of the same i think it's a difference in nuance with what the other courts have said but i think it's more protective and that is appropriate because we are supposed to have robust protection of first amendment rights of but not so if i may address this just the other issue briefly regarding the sufficiency of the indictment mr levine there is suggesting a standard that doesn't exist the standard is that the indictment has to be a plain statement of the offense ordinarily a statement of the elements are sufficient it has to put the person on notice of what they face and allow them to plead former jeopardy and they are certainly accomplished here the language of the indictment parrots the statute it tells the exact identity of the people being threatened and the dates and and that was all that was necessary they cite a handful of cases in which indictments said more but that doesn't create a requirement that you have to say more and that's just what was done in other cases mr levine is incorrect i would respect that another purpose is to allow a court to evaluate whether there was sufficient probable cause we know for many supreme court cases such as back in nova scotia that's not the job of a court a court does not evaluate what the grand jury government's going to prove and these are threats and our principal response was this is not appropriate pretty trial to evaluate the government's evidence it was after the trial i think it's documentary sixty two where we had a indictment based on insufficiency so the rule that applies here as we stated in our briefs is that the intent has to be liberally construed it can only be rejected at this stage if it just utterly fails in the fence and that's not the case here over rule cause well it certainly has something to say it has an impact i mean that was my first question to him but so i'm with you there but where you're all right how does it overrule cause me well because it's applying  constitutional standard to threat criminal threat statutes and it seems to me that extends to the cosmic case now what about the mr sounds more sad but look at the issue in virginia black is that cross burning could either be the nine hundred certain circumstances or it could be an expression of political solidarity however he knows that might be  and so and it also can be very threatening so the court needed to put some other language in there and we don't have that kind of situation and in the normal truth right case well intended to utter a threat or not you know the words that is preeminently the first amendment offense and subjective intent then you should come should come into play and your viewers cannot be evaluated you know whether it's hyperbole or artistic or something else that cannot be evaluated properly by a jury under the objective i think that's right your honor i think it's i think it's yours the drea way from that in