most fundamental principles underlying the first amendment and it rests on a total failure to prove the elements of the impacts now it's hard to fault the i say you believe it's for being cautious in the wake of virginia tech and i have to think that everyone in this room is considering the worth of the bands of last week as they listen to the arguments now but as hard as it may be to separate the connecticut connecticut school shooting from this case it would be wrong equate what happened there with what happened here the reality is that no amount of good police work can protect society from random and we're glad what we can protect though is our precious constitutional rights concessions that his speech was never communicated now meet this court with the task of remedying a series of reversible errors it's critical to emphasize the far reaching implications of this case that those are me on th the core principles underlying our constitutional system of government when the first amendment is at stake there is no room for presupposition or for the state to impose its own characterization of the defendant's words when the so i'd like to turn specifically now to the first amendment argument in our case and i'd like to narrow narrow there by the questions facing this where it's undisputed that the piece of paper in the car constituted speech so the threshold question facing exceptions without any word and and your only two on purpose the purpose underlying the true threat exception and the explicit evil that that exception is designed to prevent is fear in the listener it doesn't want to engender fear among people this is nearly front purpose is not and cannot be satisfied without communication because there can be no fear if the words are not heard so any conviction allowed without communication upsets this delicate balance that the supreme court has struck between free speech and preventing harm the third reason why actual communications required for true fred is that the state hasn't and prosecutors injurious to simply decide and that's something our constitution flatley for him so in fact the only way to ascertain the truth from other kinds of speech is through the objective measure of communication crime because there was no communication in this indeed because the state conceded that there was no communication order while these convictions must be overturned this violates the first amendment if we accept the state's first amendment theory that virginia black stands for nothing more not communication but nothing more than an intent to communicate meant to communicate that language that to virginia people if that doesn't require intend to communicate and who could possibly know what that means no one really put this crime actually captured loans of a protected innocent kind of the people would never expect to be criminal we we identified a bunch of hypotheticals in our after i'd like to turn to insufficiency a little more specifically aside from the all elements that are missing by virtue of the state's failure to be patient by concession that it did not exist and those included an intent to intimidate which really and even once not once and i think that it's telling the state can't simply skip over an element of the of the beds or its burden to prove it beyond a reasonable doubt but that's what it did below and that's what it continues to do here your argument would be that there cannot be in it a substantial step toward the commission of your fans without there being some attempt to communicate as you are really arguing your brief maybe you get to the wrong person or whatever  get but there are some attempt to communicate threat there can't be an attempt to issue a terrorist threat yes i think that makes sense right because you know the crime on those pages is that he was putting putting that apartment out there to assist he said we'll get in there and help with your where we can if we can do that we can gather evidence for another bridge we can do that that's a direct quote so we can do that so so whether it was m g everything they were supposed to by their own policy in between my model and serial number they did not and so that is further evidence of facts if they were really just investigating this this boy and we got in the car and they wanted to poke around and and then also had expert testimony just a second the state has taken the position in its grief that an intentional communication is not required i'm making the right that there does not have to be anything unique ation in order to satisfy so you would agree that some some communication and i'm not necessarily limiting it to oral communication passing the no but some stuff would be required in order to complete i was able to discover that deal with the crime of attempt making a threat that actually discussed what do you have to do to attempt now i mean  california people versus toledo and the supreme court says and i'm quoting here for example if a defendant all the steps necessary to c the threat is written not intentionally given to police but given police by a band in his arm and leaving the brass in there i  not completed it has to obviously come to someone's attention if it had remained in it will these are never seen by anyone then we would have we wouldn't be here today but it was inadvertently i mean i think theoretically you could come up with some kind of scenario where he planned to have the police discovered it this way but i for this to become a crime well you simply wouldn't be here today yes and what would that other thing be and is that necessary then for there to be a substantial cited in our our brief but in these books my mind in which a teacher inadvertently discovers a writing about a dream and a dream is a threat and that same the street or person for that to be completely wrong so going back to the question of the computer file the only thing that had to audley decided no i don't want this anymore this is this i'm throwing it away you can't that i don't think you can make the assumption that i'm throwing this away because i deleted it and it was overheard by police officers whether that's your intended recipient or not second of all it's think you can find that intent communicate when you compare the written out and computer based know because of the amount of detail involved in that because of the reference to virginia tech because of the reference to this specific pin account which he the evidence shows he had his girlfriend set up for him to take he gone on farther than just driving didn't know if there was just the no names like harvard logo and remember them all prestigious universities throughout their so it took a lot of time and work to develop this this moviemaker file there's nothing you can even tell how long the sound effects are there not long enough to even remotely via the music and as i say the the only thing missing is the actual completion of the act so what are you saying that a substantial step in this case could have been the development of pay pal  absolutely if you look at the park is that we've cited in our brief and essentially say than someone who takes steps to be able to carry a threat and that but he did offer and there was a similar challenge in that case in which they said that all this is it doesn't have anything to do with the crime and the second circuit ordinary times and right now is not working every time as we found out in columbine as we found out in virginia tech and as we found out last friday at sandy hook terrorism in our schools reality people ask what question whether or not that's a substantial step toward the making of a terrorist threat that has been proved you know why couldn't the jury say you know here's all the other boards you know he walked the no he and it's important to me and sit certainly you know of some of these trolls with attempted burglary of the evidence is that they wrote privately they're playing for how to get a house and they went out and bought some burglary tools and