Opinion
No. HHD CR09-632655
September 6, 2011
Ruling on Motions to Dismiss
The defendant, charged with three counts of inciting injury to others, has filed separate motions to dismiss challenging: 1) the court's territorial jurisdiction over the case, and 2) the constitutionality under the first amendment of the application of the inciting statute to the defendant's conduct. For the following reasons, the court denies both motions.
For purposes of the motions, the undisputed facts are that, on Tuesday, June 2, 2009, the defendant, from his home computer in North Bergen, New Jersey, wrote and posted an internet article or blog on the "Turner Radio Network" in which the defendant expressed outrage at a bill — 2009 General Assembly raised bill 1098 — that State Senator Andrew McDonald and State Representative Michael Lawlor had co-sponsored. That bill would have removed priests and bishops from financial oversight of Roman Catholic parishes, and replaced them with "boards of lay people." The article also identified Thomas K. Jones as the ethics enforcement officer of the office of state ethics.
The article contained the following language:
While filing a lawsuit is quaint and the `decent' way to handle things, we at TRN believe that being decent to a group of tyrannical scumbags is the wrong approach. It's too soft.
Thankfully, the Founding Fathers gave us the tools necessary to resolve the tyranny: The Second Amendment.
TRN advocates Catholics in Connecticut take up arms and put down this tyranny by force. To that end, THIS WEDNESDAY NIGHT ON THE "HAL TURNER SHOW" we will be releasing the home addresses of the Senator and Assemblyman who introduced bill 1098 as well as the home address of Thomas K. Jones of OSE.
* * *
It is our intent to foment direct action against these individuals personally. These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.
If any state attorney, police department or court thinks they're going to get uppity with us about this, I suspect we have enough bullets to put them down too . . .
The blog was read in Connecticut by a legislative aide, who shared the article with McDonald, Lawlor, and Jones. The defendant was arrested on Wednesday, June 3, before the publication of any home addresses of the subjects.
Count one of the information alleges that the defendant incited and solicited the killing or injury of McDonald in violation of General Statutes § 53a-179a. Count two alleges the same with respect to Lawlor; and count three alleges the same with respect to Jones.
Section 53a-179a provides: "(a) A person is guilty of inciting injury to persons or property when, in public or private, orally, in writing, in printing or in any other manner, he advocates, encourages, justifies, praises, incites or solicits the unlawful burning, injury to or destruction of any public or private property or advocates, encourages, justifies, praises, incites or solicits any assault upon any organization of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2, or the police force of this or any other state or upon any officer or member thereof or the organized police or fire departments of any municipality or any officer or member thereof or the killing or injuring of any class or body of persons, or of any individual.
(b) Inciting injury to persons or property is a class C felony.
I. TERRITORIAL JURISDICTION
The defendant argues that Connecticut courts lack jurisdiction over the case because the defendant posted the article from a computer in his home in New Jersey and did not have any physical contact with Connecticut. The defendant concedes that New Jersey courts would have jurisdiction over any related prosecution.
There is no statute or case directly on point. Our statutes provide generally that "[t]he territorial jurisdiction of the . . . Superior Court shall be coextensive with the boundaries of the state." General Statutes § 51-1a(b). This statute just begs the question, however, of whether the crime occurred within "the boundaries of the state."
In State v. Ross, 230 Conn. 183, 199, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165 (1995), our Supreme Court recognized that "as a matter of public policy in the realm of criminal law, the General Assembly has the constitutional authority to enact a statute that has an extraterritorial effect." The Court cited the United States Supreme Court's 1910 decision in Strassheim v. Daily, 221 U.S. 280 (1910). State v. Ross, supra, 198. In Strassheim, Justice Holmes, speaking for the Court, stated the following: "Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power." Strassheim v. Daily, supra, 285.
Given that the state has constitutional authority to punish extraterritorial acts, the Ross Court reasoned that the ultimate question is a matter of statutory construction. State v. Ross, supra, 230 Conn. 200. The Court then examined the capital felony statute in the context of a case in which the defendant intentionally committed two kidnappings in Connecticut with intent to cause the death of his victims, killed the victims during the course of the kidnapping in Rhode Island, and then returned the victims' bodies to Connecticut. The Court observed that "[o]n its face, the statute requires the state to prove murder by a kidnapper without requiring that the murder have been committed in Connecticut." Id., 200-01. The Court labeled this interpretation of the statute a "literal construction." Id., 201. The Court concluded: "[t]his case, therefore, demonstrates an overwhelming factual nexus between the crimes and Connecticut. We are persuaded that the legislature intended the literal language of the statute to apply to a case so closely tied to the public welfare of this state." Id., 202.
Applying a similar approach yields the conclusion that Connecticut has jurisdiction over the crimes alleged here. The criminal statute in question, General Statutes § 53a-179a, does not literally require that the acts of incitement take place in this state. See note 1 supra. The statute stands somewhat in contrast with General Statutes § 53a-261, which is a specific jurisdictional provision stating that our courts will have jurisdiction over computer crimes, as defined in section § 53a-251, only "[i]f any act in furtherance of the offenses set forth in section 53a-251 occurs in this state or if any computer system or part thereof accessed in violation of section 53a-251 is located in this state."
Given that the incitement statute does not literally define its extraterritorial reach, the court must examine the case to determine whether there is a sufficient "factual nexus between the crimes and Connecticut." State v. Ross, supra, 230 Conn. 202. Although the defendant in this case wrote his message from his computer in New Jersey, he directed his message primarily to "Catholics in Connecticut." He urged them to take violent action against three Connecticut public officials. He promised to release the home addresses of these individuals which, given their official positions, almost certainly had to be in Connecticut. The threatened violent action clearly was "closely tied to the public welfare of this state." Id. This case, then, falls precisely into the scenario contemplated by Justice Holmes of "[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it . . ." Strassheim v. Daily, supra, 221 U.S. 285. Under these circumstances, there is a sufficient factual nexus to Connecticut to justify its exercise of territorial jurisdiction. Accordingly, the court denies the defendant's motion to dismiss for lack of jurisdiction.
Although the Ross Court described the "overwhelming factual nexus" between the crimes and Connecticut, the court construes the use of the word "overwhelming" as descriptive rather than as part of the minimum standard necessary to justify extraterritorial jurisdiction.
II. FIRST AMENDMENT
The defendant also moves to dismiss on the ground that application of § 53a-179a to his conduct would violate the freedom of speech guarantee in the first amendment. The defendant does not challenge the constitutionality of § 53a-179a as vague or overbroad on its face. Indeed, he cannot do so, because the Appellate Court in State v. Ryan, 48 Conn.App. 148, 709 A.2d 21, cert. denied, 244 Conn. 930, cert. denied, 525 U.S. 876 (1998), specifically rejected that challenge. In Ryan, the Court preserved the constitutionality of the statute by attaching a judicial gloss that requires the state, in addition to proving the literal elements of the statute, to demonstrate "that the defendant intended to cause another to engage in the killing or injuring of another individual, that the defendant's words and acts were directed at soliciting imminent lawless action and that such words and acts likely would produce such action." State v. Damato, 105 Conn.App. 335, 350, 937 A.2d 1232, cert. denied, 286 Conn. 920, 949 A.2d 481 (2008) (citing State v. Ryan, supra, 48 Conn.App. 159).
The first amendment to the United States Constitution provides in pertinent part: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . ."
The other elements of the offense, based on the express language of the statute, are that the defendant "1) in public or private, orally, in writing, printing or in any other manner, (2) advocates, encourages, justifies, praises, incites or solicits, (3) the killing or injury of any class or body of persons, or of any individual." State v. Damato, supra, 350.
"In determining whether the evidence proffered by the state is adequate to avoid dismissal, such proof must be viewed in the light most favorable to the state." State v. Kinchen, 243 Conn. 690, 702, 707 A.2d 1255 (1998). The governing principle is that the first amendment does not permit a state to forbid or proscribe advocacy of the use of force except where such advocacy is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Thus, "while advocating violence is protected, threatening a person with violence is not." Planned Parenthood v. America Coalition of Life, 290 F.3d 1058, 1072 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003). The Supreme Court has distinguished between political hyperbole, which is protected, and true threats, which are not. See Watts v. United States, 394 U.S. 705, 705-08 (1969). See also Planned Parenthood v. America Coalition of Life, supra, 1072.
The court must now analyze the application of the statute under these principles. There can be little dispute that the defendant's message explicitly advocates using violence. In language that is less than subtle, the defendant stated that Catholics in Connecticut should "take up arms" and put down this tyranny "by force." The defendant urged that readers teach the intended victims the lesson that they should "Obey the Constitution or die." Finally, for those officials who might stand in the way, the defendant suspected that "we have enough bullets to put them down too . . ."
Some of the defendant's references to violence are more implied in nature. The defendant's message that "the Founding Fathers gave us the tools necessary to resolve tyranny: The Second Amendment" is undoubtedly an indirect reference to using firearms. Similarly, the defendant's call to "foment direct action against these individuals personally," may suggest violence when put in the context of his more express language.
The critical question then becomes whether the defendant advocates violence that is imminent and likely. See Brandenburg v. Ohio, supra, 395 U.S. 447. The Appellate Court has approved the definition of "imminent" in this context as "about to occur or impending" without attaching a specific time frame. State v. Damato, supra, 105 Conn.App. 348-50 n. 14. In this case, the defendant authored his blog on Tuesday, June 2 with a promise to release the home addresses of the intended victims on the next evening. This close time frame is enough to show that action was impending or imminent and thereby satisfy constitutional concerns. The remaining questions should go to the jury to decide.
Although the United States Supreme Court in the cited case of Brandenburg v. Ohio, supra, 395 U.S. 447, did not explicitly make the actor's intent an element of the first amendment analysis, the Appellate Court, in order to preserve the statute's constitutionality, has required the state to prove the additional element that the defendant "intended to cause another to engage in the killing or injuring of another individual." State v. Damato, supra, 105 Conn.App. 350. Here the defendant explicitly stated his intent: "It is our intent to foment direct action against these individuals personally. These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die." Thus, there is at least some evidence that the defendant's intentions were serious, rather than jocular or overstated.
The final element is that the solicited action must be likely to occur. The Appellate Court has approved a jury instruction stating that the solicitation must "have a very substantial capacity to propel action to kill or injure a person." (Internal quotation marks omitted.) Id., 350-51. However, the likelihood element does not require the state to prove that the intended victim actually had been harmed by the defendant or his agents." Id., 346 n. 11. The defendant's message was on the internet to which, one can safely presume, most Connecticut residents had access. Of course, most Connecticut Catholics or other citizens would not have been persuaded by the defendant's message to take up arms and attack state officials with physical force. However, the court cannot overlook the fact that we live in an age of terrorism and violence, including violence concerning difference in religious doctrine, and that there are unstable individuals with access to firearms who might respond to the defendant's call to use "bullets to put them down . . ." One need only go back approximately ten years from today's date to recall the devastation that religious fanaticism can produce in this country. Viewing the evidence in a light most favorable to the state, as the court must do at this point; see State v. Kinchen, supra, 243 Conn. 702; there is a sufficient basis to say that the defendant's vitriolic language had a "substantial capacity to propel action to kill or injure a person." (Internal quotation marks omitted.) State v. Damato, supra, 105 Conn.App. 350-51. Whether the state can prove that point beyond a reasonable doubt is a question for the jury.
III. CONCLUSION
For the foregoing reasons, the court denies both motions to dismiss.
It is so ordered.