Threats against senator could put man on trial

Appeals court rejects Bay Area resident’s 1st Amendment defense of McConnell email.

It might be tempting to fire off angry emails to politicians you despise. But a federal court ruling in California this month should warn of the potential consequences.

Howard Weiss, a Bay Area resident, was indicted in 2020 for allegedly using anonymous emails to threaten and harass Sen. Mitch McConnell, the former Senate majority leader, in 2018 and 2019.

The case has gone back and forth. Earlier this week, the U.S. 9th Circuit Court of Appeals issued a ruling that Weiss can be charged with threatening or harassing McConnell through email, after the original decision was tossed in 2020.

The case is one of several in federal courts testing how far citizens can go in expressing their distaste — and even hatred — of elected officials.

Weiss, at least in the opinion of the appeals court, crossed a line.

“[The] resistance is coming to DC to slash your throat,” read a portion of the email Weiss sent in Oct. 2018 included in court documents. The email was sent from an address that referenced the “resistance.”

The email was one in a series Weiss allegedly sent to McConnell, some of which referenced violent acts and racist slurs.

According to court documents, law enforcement contacted Weiss on multiple occasions regarding his messages.

“The officer ended the interview by suggesting that defendant be ‘mindful,’ because other people could perceive his email as a threat,” the prosecution wrote in a court document

U.S. District Judge Charles Breyer of San Francisco dismissed the case last year on 1st Amendment grounds. But the 9th Circuit panel did not buy the judge’s arguments, which concluded that Weiss’ statement did not constitute “true threats.”

In order for a message to be considered a “true threat” it must meet two legal criteria, the panel noted. The sender must be able to foresee that a message could be interpreted by the intended recipient as a real expression of intent to harm or assault. Additionally, and more directly, the sender must be sending “a serious expression of an intent to commit an act of unlawful violence to a particular individual.’ ”

The 9th Circuit panel concluded that a “reasonable jury” could find that the Oct. 18 email met both of those criteria.

“Weiss’s message was likely to engender a ‘fear of violence’ by describing when and how the threat would be carried out,” the memorandum said.

“Although Weiss ‘did not explicitly indicate that he was going to kill’ Senator McConnell ... he associated the sender of the message with the ‘Resistance’ through the email address he provided,” the panel wrote.