not have known about that but for that courtesy i did want to express my appreciation i would really it now is your honor indicated we've raised several issues of the briefs and time permitting i'll address all of them certainly make every effort to enter any questions your honour's have regardless of issue but first i'd like to commence with the first issue the question of the constitutionality of the cyberstalking statute now in this regard i think it's important out up front that we're talking about the burden of the cyberstalking statute that was in effect in two thousand and seven i would suggest your honor is that one of the things that those amendments tell us is that this is one of those areas where the rapid development of technology is causing a catch up by the law the law is as i'm sure your  always to some extent some step behind technology and this is an area where the technological development has been so rapid that the effects of the constitutionality kind of get wrapped up in the development of this we're not talking anymore just about e mails we're talking about twitter we're talking about instant messaging we're talking about e mails we're talking about voice mails if i asked my children who are probably several other things that we're talking about that i'm simply un in addition it has to be a threat in each of those instances down to the surface that may seem pretty straightforward to instances of communicating a threat by electronic communication that meets the kind of threat that the statute sanctions but it's not because what we're dealing with here and this is the head i think a very important point this address is solely the communication there's not really know what the physical act involved unless this statute says if you transmit these threats to harass someone you have committed cyber stalking it is a it what it does is it sanctions a communication itself it is the communication really the communication a lol if it meets the additional requirement that it be a threat  etc that is at issue and that's what wins the first amendment engine into significance here that's why we have the first amendment concerns about this issue now the state has maintained that this these kind of communications are not protected by the first reasonable doubt arguments but for purposes of whether this passes constitutional muster i would sit strongly suggests that over review when you get the call on it are these the kind of things that can be sanctioned can be criminalized under the first amendment the first limit as i said a moment ago doesn't it covers and allows the state to prohibit the transmission of true threats now i think the black case aside in both our brief in the states free and it's progeny are extremely important  understanding how this is measured how this is judge and what we're talking about here when we talk about true threats black itself addressed a case of cross burning bridge and yet had criminalized cross burning the statue as well include it clouded a presumption that if you're burning a cross you intend to intimidate and with a black or to look at and said is that in general all prohibitions on speech violate the first amendment there is an exception however for true threats they went through an analysis of cross burning historically and they said that this is going to meet the definition of true threat but most significant than that is the way they reached that decision they focused on the intent of the speaker rugby he was doing not on how it was perceived by the victim not how it was present preceded by any recipient of the message but what did the speaker intend by the communication itself and this now makes it makes it is important here because now we're going to look at this we're going to have to judge of this when we go through a reasonable doubt it now says in terms of what mr sue sichem tended when he said these emails well you see it one is subjective so it's your position that when mr sukh who testif i for an i there is no moment for mercy that's not a true threat i think you're wrong when you look at this in the context of the entirety of the message and for this purpose i think you can also look at the second movement mr sousa was heartbroken mistresses six believe he was in a serious because mostly it's it and this is a man who's not a native english speaker he serbian by birth and which is a second language to him testify in this case he says he say that's an incorrect interpretation yes he did he said that this wasn't meant i wasn't he was a man and he didn't say what i just read is not what he said he admitted saying oh yes you're ok yes i don't want to know a tape with all serbian saying oh no he states interpreter says yes i can't wait to cut your head off and what the way i read it is i love you dearly i'll give you perceives it but did he intend to convey the threat now all of these particularly the second e mail which is extremely lengthy talks mostly about if we don't get back together if you don't come back if we don't have this relationship if we don't get men in black is cited page twenty three of the blue brief the speaker need not actually intend to carry out this threat rather a prohibition on true threats protects individuals from the fear of violence in from the destruction that fear engender in addition to protect the people from the apple well but the fact is that in part there was evidence of that claim they had the anarchists handbook or cookbook i can't remember the term for it there was a description of how he was going to make a bomb there was testimony from neighbors to the extent that as a kid he'll of putting things together a blow might all that was was measured there in terms of the true threat and they found that to be a true threat and i'm looking when you look at this when you look at the surrounding circumstances  these these other incidents these other episodes if you do you see an inability to consummate anything against him he had according to her eavesdrop from the hallway on her phone calls yet not what's is there any indication that he ever communication that for some reason that's overreaching and that's unconstitutional because it focuses strictly on the communication account because we maintain it's not a true threat well if this was a true threat if there was a kind of evidence that they had was a telephone call and several telephone calls were made to this woman in the same circumstances and the caller kept saying you know what you have ruined my life you have broken my heart i'm going to kill myself i'm going to kill you too without being family you might not say that however it is harassment we're not asking that the person be guilty of actually carrying through this that's it's our harassment i mean that it's the act of continually to call and continuing to make happening at that point where i couldn't make a profit you could argue that the purely within a saw it's all communication county based on your argument it's all communication and whether or not it is protected by the first amendment or not i would suggest your honor is going to be determined by whether this is based on the speaker's intent on the black as construed in our whether there is a truth whether this is just puffing well this is just some of the frustration over that person has no way of hearing or seeing what you're venting is your right is just venting when you're venting crosses into someone else who is the target of that venting hearing it or seeing it on email then you're crossing into an area  there was i believe a voicemail message in between and i asked her in the email and then the second e mail and the statute actually states it has to be at least two in well in the second one thread again look at this in context of the me that's not good for the receiver right i'm telling you you killed me you can't take seriously someone say you've murdered me or they will be incredibly foolish not to treat people like this very here it whether you receive it or not it's very did just to wind up the point about true threats and how that fits in here the claim of so myself i'll take you with me of the second one that she killed his heart and he will get even where all the context here of those specific messages kuli the second life it revolved around the insurance fraud allegation and here's your chance i'll make a deal with you marry me will be a family that this won't happen but if you don't preceded that i will have no mercy on you which is that you're showing me no mercy if you're not going to get yet get back together with me then you know i'm going to report this to the federal authorities you're going to do time you won't see your son before while you i don't think it's a threat within the meaning of black where the alleged threat is to do your duty as a citizen report which you believe is a crime challenges and again the point i think is that needs to be made here is that in the stalking context it is the threat which gives color to another physical act surveillance following showing up the place of work showing up at residents showing up at some other place that you know to be occupied the thread gives color to the physical actions but here we don't have those physical actions here we're dealing with just the threat i think that makes it different for purposes of the first amendment analysis or what we heard in this case we do if  knowingly transmitted a threat that basically is the same argument they were talking about previously i won't go through it again but second that the threats were of immediate or future harm which is again one of the elements as the find in this specific section of  really this i don't know that how they can define each other because rather than give a flavor to each other they define the entire spectrum i can be alarmed if someone in a car behind me beeps that doesn't make cyberstalking alarmed is kind of the minimus terrorize the opposite end of the spectrum but again when we look at the facts or a look at what he did what he intended how he has and testified that he didn't intend that seriously that this was just idiom i believe one of the episodes is what just a seal refers to the when the two neighbors saw him on the landing tween their doors caressing the frame in the door and there is no evidence in this record that she was in the apartment at the time or knew about it he never makes inquiry the only time there's anything at that hearing that even approaches him is as during the sentencing portion of the year but the only thing that's the stuff at that point is the allegation that there was we're dealing with a pro se litigant it's not going to be perfect but before the judge can rule and say i'm not going to give you an atrocity to argue these issues for you he's got to make some kind of paper he's got to know what issues he's rejecting this is the way to send right now that conversation right away i want to back up a little bit on the first amendment context and cover the facial part if that's ok with the court and that all move to the as applied i'm going to skip the vagueness unless this court has any questions you should ok so first amendment challenge the starting point really for everyone here isn't in dispute threats to commit violence or physical harm are categorically excluded from the reach the protections of the first amendment no one really disagrees about that and your honor if you put out just because it's speech and even just because it's content  speech isn't constitutional unique doctrines like fighting words defamation child pornography these are all other examples of pure speech categorically excluded from the first member protections here we're talking about another category the threats of violence or physical harm they're excluded precisely because they do not further any first amendment value honor pointed out host a whole host of verbal crimes that doesn't make it something that we have to immediately say that's a first amendment problem we have to look at whether or not it's categor no doc tried only just just to just to make sure just to clear up just because someone raises some problematic hypotheticals under the doctrine of over that's not necessarily going to bring or bring about a facial striking of the stature die trying only with then over breath analysis we handle these kind of friend scenarios he's kind of hypotheticals on a case by case basis we handle it facially perfectly constitutional but you may well have an as a pied problem under the particular facts of the case and really that's what the the bulk of defen argument is about he can't use this as applied claims his well there's not enough proof that i intended at those kind i give out said he that he was he makes charges brief and that he was up here making today he can use those proof based arguments to effect a facial striking of the statute we have to go through the facial that the substantial over breath analysis in order to in order to come to that conclusion i come to that conclusion so striking the statute the over breath must not only be real it must be substantial as well in substantial means both an absolute terms and also relative to the statutes so that's what i'd like to do and they are going along the way as a as we're discussing statute i'm going to handle the hypotheticals that defendant raises in his facial challenge i mean a handle on him point out because we have this is actually the that the man's ray that the bailey court wrote into the stalking that wilkens ramma said would remiss in from the ag arson statutes and those in that line of cases we have that in this case not only do firing off an angry e mail concern that a found it raises that's not going to that's going to not going to fall the statute we have sort of the repetitive nature written into the statute to accommodate that kind of concern next we have harass another person through the use of electronic communication and that's defined in the step to engage in a course of conduct that alarms forman's or terrorizes that person looking after us we have on the one hand we kind of we have the state of mind the relevance the state of mind the recipient component built into the statute on the one that in conjunction on the other hand we have the transmits a threat of immediate said immediacy concern he raises or future bodily harm now we have the mens rea out it's not just an unintended threat that he talks about it's not hyperbole it's not any of those kind of sorts of concerns that he raises because of combine obviate the bulk of defendants remaining concerns practical joke hyperbole the cloak realists he talks about he's not there's other non native speakers those kind of concerns in addition to common it in the statute within the mechanics of the statute itself now so the definition constitutional definition of a true threat serious expression of intent to commit an act of unlawful violence to a particular now he was incapable of effecting under the constitutional doctrine the speaker need not actually intend intend to even be able to carry out the threat itself those are those are the constitutional planners of the true threat doctrine so when defendants a chasin it's pretty funny intimated during argument that now there's a distinction between these it doesn't matter it's just a matter of the first amendment under the true threat doctrine what we're talking about is constitutionally irrelevant because as i said the true threat constitutionally need not actually intend unconstitutional joe look at the mechanics hypotheticals raise combining it with the constitutional premise the doctrine of true threat what we really have actually in our wait just just a brief comment about something that defendant raised in terms of what my argument was with respect to their facial as applied relationship it's not my argument in it and  if i communicated it sort of poorly in the brief i apologise but here's american on that it's not that the facial and the as applied claims that offend it raises are not constitutionally viable that's not my argument it's just that what defendants really raising here the bulk of what he's raising isn't as a quite argument he can't get the facial remedy at that's he can only get his conviction reversed and i'm going to talk about  i don't think his conviction should be reversed i don't think he's satisfied as applied but he can you see as applied proof kind of arguments that that that's throughout history to affect the facial striking the s perfectly fine as applied it's critical hyper hyperbole even notably notably in that case and this kind of takes me into that the conversation about context that that your honor raised in that case there relied on the context you can't evaluate in any case you can evaluate what we have here intent state of mind you can evaluate them tries to respond rationally you know what it guy has a a crack addict has a gun to up to your had a person's had and you try and talk him down talk i'm ashley speakers that kind of rational response is that is the way you decide to go about handle the situation doesn't mean in our armed tormented or terrorize and that's my and also he also says well she didn't call the police she didn't call the police right away she couldn't  says one of the arguments that he makes is that it's their suffocating he makes out in a reply brief he says well you can't you can't simultaneously kill yourself and then bring someone to the insurance company they're to can't be a real threat but if you really look at that if you look at the especially the first one if you look at it the really kind of either or propositions he's basically saying either you fake to make sept my blackmail through insurance fraud the real telling one is that last follow up phone call after the second on that one he there is really no way that you can dispute that those are those are definitely really intended and really true first one to he's saying please think what you're doing while i'm in a problem with future i will commit suicide my life will vanish or i will do a suicide i will take you with me means i will end my  i do not mind dying as of now try me killer those those are those are words of friends then followed up with the phone call you fucked up my life i look like a shadow you do not answer me this is just payback and i'm going to be vanished i mean the grave already one foot in the grace i don't give a fuck i'm dying anyways i'm dead i'm a dead person without you in aid and so i will take you with me because i need you with me in heaven ok you're coming out with me you're coming the fuck out with me you can send the cops on me how many times how are they going to find me i'm going to kill a fucking every spirit that's killed myself those sorts of threats pretty clear expression subjective and objective threat of immediate future defenses there's no immediacy and here he take a look at the second email he basically gives her twenty four hours to decide to either our proposition and the urgent content the fuck the email the phone call i look at my e mail all of that indicates the defending himself testified that he went to the victim's home that because she invited her chin bided a she called him up and said come over and then try to put it out why is he at the door she invited  all circumstantial evidence so to suggest that there's no evidence in the record is not true also the construction that he puts on it it defies the rules of punctuation and grammar  about grammar no no it's just that no and i'm not going to go into the grammar lesson i'm just this is this is significant because he says at the end of the whip at the end of the laundry list of places where she can be surveilled there's other place occupied by the person of that's the only phrase within within all of these phrases that has occupied by the person who a defendant occupied by the person such truly a man's all the other places her school her home her place for employment that's not how that's not statutory construction proper ok and that's what i mean by i'm not going to go into the rules robot that defies punctuation and grammar and that's one of my rules of such a construction it jocko that's a case to find it relies on a mystery and that's number one zero eight four six five it's still in the briefing stages giving the patient patients i just handled that that argument though the the the want to talk specifically about this plea question that's the only thing that he saw he did his inquiry that's the only thing that wasn't within his purview his knowledge that he had to do further increase we did have everything right with respect to crank on to just a couple of points with counsel talks about the mechanics of this that the statute itself has the mechanics to have for all that oh i would just point out that picture your honor that the purpose of the trust to tional issue again we're