UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________
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UNITED STATES OF AMERICA )
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v.
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BRANDON ZIOBROWSKI
)
______________________________)

Criminal No: 18-cr-10250-DJC

DEFENDANT’S MOTION TO DISMISS
AND MEMORANDUM OF LAW
Now comes the Defendant, Brandon Ziobrowski, and hereby requests this Honorable
Court dismiss the indictment, one count violation of 18 U.S.C. § 875(c). 18 U.S.C. § 875(c) is
facially defective because it seeks to criminalize political speech, which is one of the most highly
protected forms of speech under the First Amendment. Under the statute, the term “threat” is not
defined, and as a result, the statute risks encapsulating protected political speech in its reach. As
a result, the statute is constitutionally defective as applied in this case. Even if the Court finds the
statute constitutionally firm as applied, the protected political speech in this case does not fall
under the reach of the statute.
The legal framework of analyzing the constitutionality of a statute that criminalizes
political speech requires consideration of the speech in question within the context of the
speaker’s history of making hyperbolic statements and the existing political controversy and
debate. In Mr. Ziobrowski’s case, he is indicted with making a hyperbolic statement in a political
environment where the president of the United States and his supporters repeatedly use similar
language to make a political point. Mr. Ziobrowski has a history of using vitriol and sarcasm to

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 express his outrage and disgust over what he perceives as governmental overreach. His prior
statements, as well as the one that he is indicted for making in this case, are similar to statements
those opposed to his position including the president utter in public. His statement within this
context cannot be understood to constitute a true threat within the meaning of the statute.
The following memorandum is submitted in support of Mr. Ziobrowski’s motion to
dismiss and addresses the pertinent issues as follows. Firth, the statement of facts will discuss the
history of Mr. Ziobrowski’s political speech and the political environment within which his
statement was made. Then the legal argument first sets forth the scope of the First Amendment
and the highest constitutional protection afforded to political speech. Mr. Ziobrowski then
addresses his argument that the statute is unconstitutional as applied in this case. Finally, the
memorandum concludes by showing that none of the recognized exceptions to the First
Amendment apply to the political speech made by Mr. Ziobrowski.
STATEMENT OF FACTS
“I may not agree with you, but I will defend to the death your right to make an ass of yourself.”
― Oscar Wilde
Mr. Ziobrowski has been a long-time political commentator who, at various times, uses
offensive words to express his opinions on social media. On July 2, 2018, Mr. Ziobrowski
tweeted the subject of this indictment: "I am broke but I will scrounge and literally give $500 to
anyone who kills an ice agent. @me seriously who else can pledge get it on this let's make it
work." He was subsequently arrested and charged with violating 18 U.S.C. § 875(c), which
provides: “Whoever transmits in interstate of foreign commerce any communication containing
any threat to kidnap any person or any threat to injure the person of another, shall be fined under
this title or imprisoned not more than five years, or both.”

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 As evidenced in the discovery obtained from search warrants for Mr. Ziobrowski’s social
media accounts, Mr. Ziobrowski has a lengthy history of expressing his opinions on social media
platforms. Specifically, in 2018 he tweeted, inter alia:
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"Step one: implant a bomb in every kids (sic) head. If they try to act up the teacher can
just blow them up with a switch. No more school shootings. Now on to fix the rest of
America's problems"
"Guns should only be legal for shooting the police like the second amendment intended"
"We should have exterminated the south when we crushed their rebellion. Hindsight is
20/20 ¯\\_(ツ)_/¯"
"Thank you ICE for putting your lives on the line and hopefully dying I guess so there's
less of you? https://t.co/ qIUPQ2OuRB"
"Hey I haven't tweeted this in a while but we should still kill the rich and redistribute
their wealth"
"Didn't think I have to say this but if you watch cop shows, especially post 9/11, you're a
cop. Stop masturbating to simplistic narratives that glorify state violence"
"Can’t wait to get killed by an honor student"
"Go shoot someone over the right to a speedy trial. Or better yet women's rights, or
literally anything else. Until that happens these arguments mean less than nothing.
They're just a threat to kill anyone who doesn't want guns everywhere"
"The democratic party wont (sic) form a dissent platform around concentration camps for
children. They're so lazy and stupid and can't wait to die"
"I’m staying at the large seaside summer home of a wealthy aunt with a cast of odd
characters and there have been ZERO murders. Believe me I’m fucking pissed."
"@realDonaldTrump Fuck you nazi”
"@ICEgov Fuck you nazis"
"@ICEgov cool cool so a nazi platoon"
"Politicians are the enemy and always have been you dumb shits"
"I can’t believe John McCain isn’t dead yet"
"John McCain made a deal with the devil not to die until we have concentration camps in
America"
"*Cop shoots 4 or 5 black children*\n“Sir, (sic) SIR, excuse me SIR. THEY do not like
that very much.”\n“I (sic) will continue to murder them thank you for your
tolerance.”\n“Or (sic) course! I am a leftist, I could do no less”"
"Thank you Anthony Kennedy, ghoulish psychopath who for some reason we call a
swing vote because uh he didn't want to execute children and the mentally disabled"
"@marcorubio shut the fuck up you shit people are dead"

It should be noted that similar speech extends back into March, 2009, though there is no
evidence that Mr. Ziobrowski acted in furtherance of any alleged threats. Specifically, from 2009
to 2017, he has tweeted inter alia:

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"Holy shit Philly is closing their public libraries. Fuck you America. Fuck your face. You
don't even understand what will keep you alive."
"Oh Scalia when are you going to die already?"
"Hey all asshole Ohio senators with gay sons: shut the fuck up you human garbage. Die.
Open your worthless acid pumping veins tonight and die"
"We are all terrorists."
"Netflix is not working. The error report says it's sending \"bad data;\" we live in an age
of wonder. I'm going to kill someone."
"Imagine you could go back in time and kill Hitler/ Stalin/Mao.
#KILLBenjaminNetanyahu”
“Got a strong feeling I'm gonna (sic) go Lord Of The Flies on my trashboy (sic) (almost
ex-) roommate this week."
".@realDonaldTrump kill yourself"
"I'm not pro death but I literally don't care about cops."
"If they really want to disrupt the system they'll make a gofundme to kill Donald Trump"
"When I read my own tweets I worry that I may be mentally unbalanced. #notreally
#butreallymaybe?"

Due to Mr. Ziobrowski’s extensive history of expressing his political opinions online, any
comments are to be understood as comments on political issues of public concern. In fact, Mr.
Ziobrowski is not the only one critical of the Immigration and Customs Enforcement Agency
(ICE). In fact, the activities of ICE have been the subject of widespread political discussion and
debate in the past two years.
An increasing number of news agencies, organizations, and individuals have expressed
concern on social media sites regarding the harsh treatment of ICE detainees and migrants across
the country. The Atlantic reported that the Trump Administration “radicaliz[ed] ICE” through a
series of policy changes echoing anti-immigrant sentiment: “Even if putative fiascoes such as the
initial Muslim ban and family separations at the border fail in court or are ultimately reversed,
they succeed in fomenting an atmosphere of fear and worry among immigrants. The theatrics are,
in effect, the policy.” See Franklin Foer, How Trump Radicalized ICE: A long-running
inferiority complex, vast statutory power, a chilling new directive from the top—Inside

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 America’s unfolding immigration tragedy, THE ATLANTIC, Sept. 2018, available at
https://www.theatlantic.com/magazine/archive/2018/09/trump-ice/565772/.
The Pacific Standard Magazine reported: “Since the election of Donald Trump, not a
week goes by without some new outrageous story of overreach by various elements of
immigration enforcement.” See David Perry, Why Critics Say It’s Time to Abolish Ice, PACIFIC
STANDARD MAG., May 1, 2018, https://psmag.com/social-justice/abolish-ice. Perry continues:
“What's new, though, is that instead of criticizing specific cases and calling for reform—the
usual popular response to outrages—we're seeing increasingly widespread demands to abolish
ICE altogether.” Id. See also Molly Roberts, ICE deserves to be abolished, WASHINGTON POST,
Mar. 13, 2018, https://www.washingtonpost.com/blogs/post-partisan/wp/2018/03/13/of-coursedemocrats-should-want-to-abolish-ice/?utm_term=.1461dd391cc3, (“Those who want to abolish
ICE have a strong argument. They’re not saying the agency is useless, and they’re not saying it’s
a money-sink. They’re saying it does active harm”); Sean McElwee, It’s Time to Abolish ICE: A
mass-deportation strike force is incompatible with democracy and human rights, THE NATION,
Mar. 9, 2018, https://www.thenation.com/article/its-time-to-abolish-ice/ (“The idea of defunding
ICE has gained traction among immigrant-rights groups horrified by the speed at which, under
President Donald Trump, the agency has ramped up an already brutal deportation process”).
Agencies and organizations working with immigrants in individual cases and class action
suits against the Trump Administration have also echoed these sentiments. See
@RAICESTEXAS, TWITTER, (Apr. 25, 2019, 1:17 PM),
https://twitter.com/RAICESTEXAS/status/1121463183766622208, (“.@ICEgov everyday you
violate immigrants (sic) human rights and due process. We won’t stop until we
#EndFamilyDetention #AbolishICE”); @UNITEDWEDREAM, TWITTER, (Apr. 22, 2019, 12:29

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 PM), https://twitter.com/UNITEDWEDREAM/status/1120364010866712576 (“Under the racist
Trump administration, ICE is emboldened to be less transparent, unaccountable and act with
increased impunity. #AbolishDetention #AbolishICE #MeltICE”). Immigration attorneys have
also spoken out against ICE. See @diegoatlaw, TWITTER, (Apr. 19, 2019, 5:35 PM),
https://twitter.com/DiegoATLaw/status/1119353792837718016 (“Hey you guys / It's great y'all
(sic) want to say #AbolishICE and that you love #immigrants / But you can do actual stuff you
know / lawmakers think it's dangerous to pass pro-immigrant laws federally. You need to show
that it's dangerous not to do so. / Get off your ass. Force them.”); @luzenlafrontera, TWITTER,
(Mar. 24, 2019, 3:47 PM), https://twitter.com/luzenlafrontera/status/1109904711786749954
(“ICE should be fucking abolished. We are literally operating a stormtrooper Gestapo force that
terrorizes immigrant communities, & rips families apart. This is fascism. This is repression. & if
you think that's hyperbolic, you obviously don't talk to many immigrants. #AbolishICE”).
Mr. Ziobrowski’s comments are also to be considered in light of President Trump’s and
the GOP’s hateful comments. Specifically, President Trump has stated:
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In a February 2016 speech at St. Anselm College in New Hampshire, President Trump
claimed “I would bring back waterboarding and I’d bring back a hell of a lot worse than
waterboarding.” Andrew Buncombe, Donald Trump says he would bring back waterboarding and ‘a hell of a lot worse’, THE INDEPENDENT (Feb. 7, 2016, 3:27 PM),
https://www.independent.co.uk/news/world/americas/us-elections/republican-candidatesclash-in-fiercest-debate-just-days-before-new-hampshire-vote-a6858816.html

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At a February 2016 rally in Las Vegas, President Trump stated in reference to a protester:
“I’d like to punch him in the face.” Jeremy Diamond, Donald Trump on protestor: “I’d
like to punch him in the face’, CNN (Feb. 23, 2016, 11:59 AM),
https://www.cnn.com/2016/02/23/politics/donald-trump-nevada-rally-punch/index.html

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At a March 2016 rally in Missouri, President Trump stated in reference to protestors:
“You know, part of the problem, and part of the reason it takes so long, is nobody wants
to hurt each other anymore, right? And they’re being politically correct the way they take
them out, so it takes a little bit longer. And honestly, protesters, they realize it. They
realize that there are no consequences to protesting anymore. There used to be
consequences, there are none anymore.” Anna Giaritelli, Trump: Protestors should face

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 consequences, WASHINGTON EXAMINER (Mar. 11, 2016, 7:10 PM),
https://www.washingtonexaminer.com/trump-protesters-should-face-consequences
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At a March 2016 rally in Missouri, President Trump stated in reference to an event earlier
that day in which a protestor attempted to get on the stage: “He got over this railing, tries
to make a rush at me. I was ready. I don’t know if I would’ve done well but I would’ve
been out there fighting, folks. I don’t know if I would’ve done well, but I would’ve been
‘boom, boom, boom, I’ll beat the crap out of you.” James Robenalt, Could Trump’s HateBaiting Lead to Another Kent State?, POLITICO (Mar. 15, 2016),
https://www.politico.com/magazine/story/2016/03/donald-trump-2016-violence-kentstate-213733

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At a March 2016 rally in Michigan, President Trump stated in reference to protesters
being removed from the venue: “Yeah, get him out. Try not to hurt him. If you do, I’ll
defend you in court. Don’t worry about it.” Gabriella Muñoz, Maxine Waters: ‘The
President lied again’, WASHINGTON TIMES (Jun. 26, 2018),
https://www.washingtontimes.com/news/2018/jun/26/maxine-waters-the-president-liedagain/

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At an August 2015 press conference in Michigan, President Trump stated in reference to
protestors coming on stage: “I don’t know if I’ll do the fighting myself or if other people
will.” Serina Sandhu, Donald Trump threatens to fight Black Lives Matter activists, THE
INDEPENDENT (Aug. 12, 2015, 11:05 PM),
https://www.independent.co.uk/news/people/news/donald-trump-threatens-to-fight-blacklives-matter-activists-10451119.html

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At a March 2016 press conference in Florida, President Trump stated in reference to his
supporters fighting protestors at rallies: “He was swinging, he was hitting people, and the
audience hit back. And that’s what we need a little bit more of.” Nick Gass, Trump:
‘There used to be consequences’ for protesting, POLITICO (Mar. 11, 2016, 1:15 PM),
https://www.politico.com/blogs/2016-gop-primary-live-updates-andresults/2016/03/trump-defends-protest-violence-220638

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At a February 2016 rally in Iowa, President Trump stated in reference to protestors:
“Knock the crap out of him, would you? Seriously, okay, just knock the hell . . . I
promise you, I will pay for the legal fees. I promise. I promise.” Ben Jacobs, Trump
campaign dogged by violent incidents at rallies, THE GUARDIAN (Mar. 11, 2016, 12:28
PM), https://www.theguardian.com/us-news/2016/mar/11/donald-trump-campaignclaims-violence-rallies

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In a 2015 phone interview, President Trump stated in reference to a protestor who was
attacked at a rally: “Maybe he should have been roughed up.” Jenna Johnson and Mary
Jordan, Trump on rally protestor: ‘Maybe he should have been roughed up’,
WASHINGTON POST (Nov. 22, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/11/22/black-activist-punched-at-donald-trump-rally-inbirmingham/?utm_term=.2be422f5d589

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In a 2015 Twitter post regarding the Wall Street Journal, President Trump stated: “The
@WSJ Wall Street Journal loves to write badly about me. They better be careful or I will
unleash big time on them. Look forward to it!” Donald Trump (@realDonaldTrump),
TWITTER (Oct. 31, 2015),
https://twitter.com/realdonaldtrump/status/660460909761069057?lang=en

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In a 2018 Twitter post regarding former Vice President Joe Biden, President Trump
stated: “Crazy Joe Biden is trying to act like a tough guy. Actually, he is weak, both
mentally and physically, and yet he threatens me, for the second time, with physical
assault. He doesn’t know me, but he would go down fast and hard, crying all the way.
Don’t threaten people Joe!” Donald Trump (@realDonaldTrump), TWITTER (Mar. 22,
2018), https://twitter.com/realDonaldTrump/status/976765417908776963

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In a 2018 Twitter post regarding migrant caravans, President Trump stated: “Many Gang
Members and some very bad people are mixed into the Caravan heading to our Southern
Border. Please go back, you will not be admitted into the United States unless you go
through the legal process. This is an invasion of our Country and our Military is waiting
for you!” Donald Trump (@realDonaldTrump), TWITTER (Oct. 29, 2018),
https://twitter.com/realDonaldTrump/status/1056885392522260480

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In a 2018 Twitter post aimed at Congresswoman Maxine Waters, President Trump stated:
“Congresswoman Maxine Waters, an extraordinarily low IQ person, has become,
together with Nancy Pelosi, the Face of the Democrat Party. She has just called for harm
to supporters, of which there are many, of the Make America Great Again movement. Be
careful what you wish for Max!” Donald Trump (@realDonaldTrump), TWITTER (Jun.
25, 2018), https://twitter.com/realDonaldTrump/status/1011295779422695424

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When asked whether President Trump was concerned about impeachment, he told a
Reuters reporter: “I’m not concerned, no,” the president told Reuters reporters about his
potential impeachment during an interview in the Oval Office. “I think that the people
would revolt if that happened.” See Brent D. Griffiths, Trump: People will “revolt” if
he’s impeached, POLITICO, Dec. 11, 2018, 9:06 PM,
https://www.politico.com/story/2018/12/11/trump-impeachment-white-house-1058779
Some of President Trump’s threatening language has been memorialized in a political

cartoon by Jesse Duquette. Jesse Duquette (the.daily.don), INSTAGRAM (June 30, 2017),
https://www.instagram.com/p/BV_BNSUlF5g/

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 The political debate in the past two years has become so heated and vitriolic, the extreme
nature of the president’s comments has become the subject if inquiry by media outlets over
concern that he may incite violence. Yet, the Administration, the same administration that
brought this charge against Mr. Ziobrowski, has maintained the statements did not constitute a
threat and were not susceptible to incite violence. According to MSNBC, after Americans
learned of a suspected terrorist plot by a Coast Guard lieutenant who planned to kill democrats
and journalists, a reporter asked Sarah Huckabee Sanders, the Press Secretary, whether Trump
could “tone down his rhetoric.” See Steve Benin, Defending Trump, Sanders lies about his
record on promoting violence, MSNBC, (Feb. 22, 2019 10:11 AM),
http://www.msnbc.com/rachel-maddow-show/defending-trump-sanders-lies-about-his-record-

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 promoting-violence. Sanders responded: “I certainly don’t think that the president, at any point,
has done anything but condemn violence – against journalists or anyone else. In fact, every
single time something like this happens, the president is typically one of the first people to
condemn the violence, and the media is the first people to blame the president.” Id.
Recently, President Trump has attacked Representative Ilhan Omar on Twitter displaying
imagery from 9/11 with audio of her comments about islamophobia. The Nation reported that
despite his propagandist video,
[ . . . ] she’s the one under attack. Trump is literally putting her life in danger, yet
the law does nothing to stop him. His threats and attacks are being amplified
through inaccurate reporting by the Rupert Murdoch empire, both through the
New York Post and Fox News, and yet they hide behind the freedom of the press.
Trump is riling up his supporters on Twitter, a platform that is not even subject to
the rigorous standards of the First Amendment, and yet people throw up their
hands and say, “Well, freedom of speech.”
See Elie Mystal, Donald Trump Isn’t Playing Games with Ilhan Omar—He’s Inciting Violence;
And he’s going to keep inciting violence until someone gets killed, THE NATION, Apr. 16, 2019,
https://www.thenation.com/article/trump-inciting-violence-ilhan-omar/. President Trump has
also attempted to “normalize” violence at the border. In a May 2019 rally in Panama City,
Florida, President Trump was praising the border patrol’s bravery in light of the fact that they do
not carry weapons, when he questioned how to “stop these people.” See Eric Levitz, The
President’s ‘Jokes’ About Shooting Migrants Are No Laughing Matter, NEW YORK MAGAZINE
INTELLIGENCER, (May 9, 2019), http://nymag.com/intelligencer/2019/05/watch-trump-rallyshoot-migrants-panhandle-militia-detained.html. When a supporter shouted to shoot them, “The
crowd exploded in laughter. Id. The president grinned and shook his head. “Only in the
panhandle you can get away with that statement, folks,” Trump said to applause.” Id. After that
rally, the Washington Post reported:

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 Trump’s support for violence against those hoping to immigrate to the United States
isn’t an isolated incident. Last year, Trump defended U.S. agents using tear gas
against Central American migrants, including children, at the border crossing in
San Ysidro, a neighborhood in San Diego. And while discussing gang violence
believed to be tied to illegal immigration, Trump encouraged police officers to be
violent with those they suspect of committing a crime.
See Eugene Scott, Analysis: For Trump and some of his supporters, violence against immigrants
appears totally acceptable, WASHINGTON POST, (May 10, 2019, 10:23 AM),
https://www.washingtonpost.com/politics/2019/05/10/trump-some-his-supporters-violenceagainst-immigrants-appears-totally-acceptable/?utm_term=.4331b057b104. Additionally,
Armando Gonzalez, a member of the New Mexico Militia Group allegedly questioned the
apprehension policy, according to The Young Turks: ““Why are we just apprehending them and
not lining them up and shooting them” . . . . “We have to go back to Hitler days and put them all
in a gas chamber.” See Ken Klipperstein, ‘Put Them All in a Gas Chamber,’ Said Border Militia
Member: Report, THE YOUNG TURKS, (May 6, 2019),
https://tyt.com/stories/4vZLCHuQrYE4uKagy0oyMA/55ZimtgirWgUh9ZgMSPirI.
As this type of language has become normalized, politicians beyond the White House
have also begun to use threatening language.
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Republican gubernatorial candidate for Pennsylvania Scott Wagner said over Facebook
Live, in reference to the Democratic incumbent, “You better put a catcher’s mask on your
face, because I’m going to stomp all over your face with golf spikes.” John Bowden,
GOP gov candidate says he will ‘stomp’ Dem opponent’s face with ‘golf spikes’, THE
HILL (Oct. 12, 2018, 2:41 PM), https://thehill.com/homenews/campaign/411176-gopcandidate-says-he-will-stomp-on-tom-wolfs-face-with-golf-spikes-in-ad.

Individuals with political motives have also used threatening language:
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People wearing “Make America Great Again” caps in support of President Trump told
bookstore owners in Berkeley, California that they would “burn down” the bookstore and
also called the owners “commie scum.” Mythili Sampathkumar, Trump supporters
threaten to burn down a bookshop in California, THE INDEPENDENT (Mar. 9, 2019, 7:55
PM), https://www.independent.co.uk/news/world/americas/donald-trump-supportersbookstore-burn-make-america-great-again-berkeley-california-a8248721.html

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Individuals made threatening phone calls to Mr. Didier Jimenez Castro of Branchburg,
New Jersey, leader of the “anti-Trump activist” group the People’s Motorcade, after Mr.
Jimenez Castro created a GoFundMe.com page to raise funds to purchase a President
Trump “baby balloon.” Cheryl Makin, Trump supporters threaten ‘Baby Trump’ blimp
activist’s job at homeless shelter, BRIDGEWATER COURIER NEWS (Jul. 18, 2018, 9:24
AM), https://www.mycentraljersey.com/story/news/politics/2018/07/19/baby-trumpballoon-didier-jimenez-castro/800129002/

It is, therefore, within the context of the heated political debate and controversy, the
widespread use of violent and offensive language by administration officials including the
president of the United States, that this Court must apply the statute to Mr. Ziobrowski’s speech.
ARGUMENT
Scope of the First Amendment
The First Amendment states “Congress shall make no law [ . . . . ] abridging the freedom
of speech.” U.S. Const. amend. 1. The Supreme Court has long recognized the importance of the
First Amendment, noting that “speech is an essential mechanism of democracy, for it is the
means to hold officials accountable to the people.” Citizens United v. Fed. Election Comm'n,
558 U.S. 310, 339 (2010). Accordingly, the Supreme Court has also recognized that “[t[he right
of citizens to inquire, to hear, to speak, and to use information to reach consensus is a
precondition to enlightened self-government and a necessary means to protect it.” Id. “In a
republic where the people are sovereign, the ability of the citizenry to make informed choices
among candidates for office is essential, for the identities of those who are elected will inevitably
shape the course that we follow as a nation.” Id. In describing the purpose for the exception, the
Supreme Court has stated:
The protection given speech and press was fashioned to assure unfettered
interchange of ideas for the bringing about of political and social changes desired
by the people. This objective was made explicit as early as 1774 in a letter of the
Continental Congress to the inhabitants of Quebec:

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 The last right we shall mention, regards the freedom of the press. The importance
of this consists, besides the advancement of truth, science, morality, and arts in
general, in its diffusion of liberal sentiments on the administration of Government,
its ready communication of thoughts between subjects, and its consequential
promotion of union among them, whereby oppressive officers are shamed or
intimidated, into more honourable and just modes of conducting affairs.
See Roth v. United States, 354 U.S. 476, 484 (1957) (quoting 1 Journals of the Continental
Congress 108 (1774)).
Given the importance of free speech to American political discourse, courts have been
reluctant to uphold restrictions on speech. See Austin v. Michigan Chamber of Commerce, 494
U.S. 652, 680 (1990) (Scalia, J., dissenting) (recognizing “the absolutely central truth of the First
Amendment that government cannot be trusted to ensure, through censorship, the ‘fairness' of
political debate”). Courts have also been reluctant to distinguish between the content of
particular messages, noting that “every person has a right to communicate with public officials
calling attention to improper conduct and . . . the language used may be vehement, vituperative
or abusive without violating the law.” Martin v. United States, 691 F.2d 1235, 1240 (8th
Cir.1982); see also Citizens United, 558 U.S. at 340-341 (noting that the “First Amendment
stands against attempts to disfavor certain subjects or viewpoints” as well as “restrictions
distinguishing among differing speakers” as “taking the right to speak from some and giving it to
others, the Government deprives the disadvantaged person or class of the right to use speech to
strive to establish worth, standing, and respect for the speaker's voice”). To this end, the Supreme
Court has protected a large number of speech and speech acts as "[t]he freedom of speech . . .
guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully
all matters of public concern without previous restraint or fear of subsequent punishment." First
Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978) (internal quotation marks omitted).

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 Under the First Amendment, a wide variety of speech acts are protected, including, false
statements, United States v. Alvarez, 567 U.S. 709, 722 (2012), obscene messages, Cohen v.
California, 403 U.S. 15 (1971), and silence, West Virginia Board of Education v. Barnette, 319
U.S. 624 (1943). The First Amendment also protects conduct, if that conduct carries “[a]n intent
to convey a particularized message” where “the likelihood was great that the message would be
understood by those who viewed it.” See Texas v. Johnson, 491 U.S. 397 (1989), quoting Spence
v. Washington, 418 U.S. 405, 410-411 (1974). Examples of conduct that has been protected as
communicative include students’ wearing of black armbands to protest American military
involvement in Vietnam, Tinker v. Des Moines Independent Community School Dist., 393 U.S.
503, 505 (1969), a sit-in by African-Americans in a “whites only” area to protest segregation,
Brown v. Louisiana, 383 U.S 131, 141-142 (1966), flag burning, Texas v. Johnson, 491 U.S. 397
(1989), and picketing about a wide variety of causes. See e.g., Snyder v. Phelps, 562 U.S. 443
(2011) (holding that a picket line formed in protest of the funeral of a U.S. Marine was protected
by the First Amendment); U.S. v. Grace, 461 U.S. 171 (1983) (holding that picketing on the
sidewalk outside the Supreme Court of the United States was protected by the First
Amendment).
I.

THE FOUNDERS ENVISIONED THE PROTECTION FOR POLITICAL
SPEECH AS A PROTECTION OF THE UTMOST IMPORTANCE AND §
875(C) IS UNCONSTITUTIONALLY OVERBROAD AS APPLIED HERE
BECAUSE IT’S BREADTH CAPTURES POLITICAL SPEECH
There is no form or speech that enjoys more protection under the Constitution than

political speech. In 2003, the Supreme Court describe political speech as being “at the core of
what the First Amendment is designed to protect." Virginia v. Black, 538 U.S. 343, 365 (2003)
(plurality opinion). This decision did not announce a new law. The Court merely stated a legal
principle that dates back to the founding of the Republic. Protections for political speech, which

14

 Justice Scalia defined as “the right of any person, or of any association of persons, to speak out
on political matters,” had already been envisioned by the time the Bill of Rights was proposed to
Congress in 1789. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 680 (1990) (Scalia,
J., dissenting) (noting that the “Founders designed, of course, a system in which popular ideas
would ultimately prevail; but also, through the First Amendment, a system in which true ideas
could readily become popular.”). The Supreme Court has recognized the centrality of political
speech to the American system on a number of occasions. See, e.g., Roth v. United States, 354
U.S. 476, 484 (1957) (“The protection given speech and press was fashioned to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by the
people”); Terminiello v. City of Chicago, 337 U.S. 1, 4–5 (1949) (“[I]t is only through free
debate and free exchange of ideas that government remains responsive to the will of the people
and peaceful change is effected. The right to speak freely and to promote diversity of ideas and
programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes”).
Under the Free Speech Clause, a government, “has no power to restrict expression
because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v.
Mosley, 408 U.S. 92, 95 (1972). “Content-based laws—those that target speech based on its
communicative content—are presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve compelling state interests.” R.A.V. v.
St. Paul, 505 U.S. 377, 395 (1992); Simon & Schuster, Inc. v. Members of N.Y. State Crime
Victims Bd., 502 U.S. 105, 115 (1991). Government regulation of speech is content based if a
law applies to particular speech because of the topic discussed or the idea or message expressed.
E.g., Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2663–2664 (2011); Carey v. Brown, 447 U.S.
455, 462 (1980); Mosley, supra, at 95. This commonsense meaning of the phrase “content

15

 based” requires a court to consider whether a regulation of speech “on its face” draws
distinctions based on the message a speaker conveys. Sorrell, 131 S. Ct., at 2664. Some facial
distinctions based on a message are obvious, defining regulated speech by particular subject
matter, and others are subtler, defining regulated speech by its function or purpose. Reed v.
Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015). Both are distinctions drawn based on the
message a speaker conveys, and, therefore, are subject to strict scrutiny. Id. Laws that regulate
content “cannot be ‘justified without reference to the content of the regulated speech,’ or that
were adopted by the government ‘because of disagreement with the message [the speech]
conveys.’” Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Furthermore,
the Court has also noted “political speech must prevail against laws that would suppress it,
whether by design or inadvertence.” Citizens United v. FEC, 558 U.S. 310, 340 (2010). To this
end, the Court has stated “the First Amendment requires us to err on the side of protecting
political speech rather than suppressing it.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 457
(2007).
Thus, § 875(c) is unconstitutionally broad because it has the potential, as is the case here,
to capture protected political speech in its reach. The level of protection afforded to political
speech does not vary according to the “truth, popularity, or social utility of the ideas and beliefs
which are offered.” N.A.A.C.P. v. Button, 371 U.S. 415, 445 (1963). Rather, “the First
Amendment . . . was designed to secure the widest possible dissemination of information from
diverse and antagonistic sources.” Buckley, 424 U.S. at 48-49, quoting New York Times Co. v.
Sullivan, 376 U.S. 254, 266 (1964) (quotation marks omitted); see also Bridges v. California,
314 U.S. 252, 270 (1941) (“[I]t is a prized American privilege to speak one's mind, although not
always with perfect good taste, on all public institutions.”); United States v. Associated Press, 52

16

 F. Supp. 362, 372 (S.D.N.Y. 1943) (noting that the First Amendment “presupposes that right
conclusions are more likely to be gathered out of a multitude of tongues, than through any kind
of authoritative selection. To many this is, and always will be, folly; but we have staked upon it
our all”). The Court has long recognized that political speech may be offensive, noting that
political speech “may indeed best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger” while also
striking “at prejudices and preconceptions and have profound unsettling effects as it presses for
acceptance of an idea.” Terminiello, 337 U.S. at 4–5; see also Bridges, 314 U.S. at 268 (“It must
be recognized that public interest is much more likely to be kindled by a controversial event of
the day than by a generalization, however penetrating, of the historian or scientist”). With the
expansive protections afforded to political speech under the First Amendment, it is perhaps no
surprise that vitriolic, and even threatening, language has grown more popular in American
politics.
a.

The Court Should Apply the Statute Within the Context of the Public
Controversy that Existed at the Time of Mr. Ziobrowski’s Political Speech

At the time of Mr. Ziobrowski’s statement, immigration was, and indeed still is, a highly
polarizing subject of national debate. An increasing number of news agencies, organizations, and
individuals have expressed concern on social media sites regarding the harsh treatment of ICE
detainees and migrants across the country. As outlined above since the election of Donald
Trump, “outrageous story of overreach by various elements of immigration enforcement” has
become commonplace. Many, including elected officials, have called for the abolition of ICE,
some comparing its practices and methods to that of Nazi Germany. Molly Roberts, ICE
deserves to be abolished, WASHINGTON POST, Mar. 13, 2018,
https://www.washingtonpost.com/blogs/post-partisan/wp/2018/03/13/of-course-democrats-

17

 should-want-to-abolish-ice/?utm_term=.1461dd391cc3, (“Those who want to abolish ICE have a
strong argument. They’re not saying the agency is useless, and they’re not saying it’s a moneysink. They’re saying it does active harm”); Sean McElwee, It’s Time to Abolish ICE: A massdeportation strike force is incompatible with democracy and human rights, THE NATION, Mar. 9,
2018, https://www.thenation.com/article/its-time-to-abolish-ice/, (“The idea of defunding ICE
has gained traction among immigrant-rights groups horrified by the speed at which, under
President Donald Trump, the agency has ramped up an already brutal deportation process”).
https://twitter.com/luzenlafrontera/status/1109904711786749954 (“ICE should be fucking
abolished. We are literally operating a stormtrooper Gestapo force that terrorizes immigrant
communities, & rips families apart. This is fascism. This is repression. & if you think that's
hyperbolic, you obviously don't talk to many immigrants. #AbolishICE”).
President Trump and his Republican allies have consistently and repeatedly used violent
language in expressing their position in the immigration debate. The following are illustrative of
the current political rhetoric and political debate.
•

At a March 2016 rally in Missouri, President Trump stated in reference to protestors:
“You know, part of the problem, and part of the reason it takes so long, is nobody wants
to hurt each other anymore, right? And they’re being politically correct the way they take
them out, so it takes a little bit longer. And honestly, protesters, they realize it. They
realize that there are no consequences to protesting anymore. There used to be
consequences, there are none anymore.” Anna Giaritelli, Trump: Protestors should face
consequences, WASHINGTON EXAMINER (Mar. 11, 2016, 7:10 PM),
https://www.washingtonexaminer.com/trump-protesters-should-face-consequences

•

At a March 2016 rally in Michigan, President Trump stated in reference to protesters
being removed from the venue: “Yeah, get him out. Try not to hurt him. If you do, I’ll
defend you in court. Don’t worry about it.” Gabriella Muñoz, Maxine Waters: ‘The
President lied again’, WASHINGTON TIMES (Jun. 26, 2018),
https://www.washingtontimes.com/news/2018/jun/26/maxine-waters-the-president-liedagain/

•

At a February 2016 rally in Iowa, President Trump stated in reference to protestors:
“Knock the crap out of him, would you? Seriously, okay, just knock the hell . . . I

18

 promise you, I will pay for the legal fees. I promise. I promise.” Ben Jacobs, Trump
campaign dogged by violent incidents at rallies, THE GUARDIAN (Mar. 11, 2016, 12:28
PM), https://www.theguardian.com/us-news/2016/mar/11/donald-trump-campaignclaims-violence-rallies
•

In a 2015 phone interview, President Trump stated in reference to a protestor who was
attacked at a rally: “Maybe he should have been roughed up.” Jenna Johnson and Mary
Jordan, Trump on rally protestor: ‘Maybe he should have been roughed up’,
WASHINGTON POST (Nov. 22, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/11/22/black-activist-punched-at-donald-trump-rally-inbirmingham/?utm_term=.2be422f5d589

•

In a 2018 Twitter post regarding former Vice President Joe Biden, President Trump
stated: “Crazy Joe Biden is trying to act like a tough guy. Actually, he is weak, both
mentally and physically, and yet he threatens me, for the second time, with physical
assault. He doesn’t know me, but he would go down fast and hard, crying all the way.
Don’t threaten people Joe!” Donald Trump (@realDonaldTrump), TWITTER (Mar. 22,
2018), https://twitter.com/realDonaldTrump/status/976765417908776963

•

In a May 2019 rally in Panama City, Florida, President Trump was praising the border
patrol’s bravery in light of the fact that they do not carry weapons, when he questioned
how to “stop these people.” When a supporter shouted to shoot them, “The crowd
exploded in laughter. The president grinned and shook his head. “Only in the panhandle
you can get away with that statement, folks,” Trump said to applause.” See Eric Levitz,
The President’s ‘Jokes’ About Shooting Migrants Are No Laughing Matter,
INTELLIGENCER, (May 9, 2019), http://nymag.com/intelligencer/2019/05/watch-trumprally-shoot-migrants-panhandle-militia-detained.html.
President Trump has also “normalized” the use of violent political speech in making a

point at his rallies. For example, in a May 2019 rally in Panama City, Florida, President Trump
praised the border patrol’s bravery in light of the fact that they do not carry weapons, and then
posed a rhetorical question as how they “stop these people.” See Eric Levitz, The President’s
‘Jokes’ About Shooting Migrants Are No Laughing Matter, NEW YORK MAGAZINE
INTELLIGENCER, (May 9, 2019), http://nymag.com/intelligencer/2019/05/watch-trump-rallyshoot-migrants-panhandle-militia-detained.html. When a supporter shouted to shoot them, “The
crowd exploded in laughter. The president grinned and shook his head. ‘Only in the panhandle
you can get away with that statement, folks,’ Trump said to applause.” Id.

19

 His message was clearly received by his supporters. Armando Gonzalez, a member of the New
Mexico Militia Group allegedly questioned the apprehension policy, according to The Young
Turks: ““Why are we just apprehending them and not lining them up and shooting them” . . . .
“We have to go back to Hitler days and put them all in a gas chamber.” See Ken Klippenstein,
‘Put Them All in a Gas Chamber,’ Said Border Militia Member: Report, THE YOUNG TURKS,
(May 6, 2019). In light of the current political climate in which immigration is a highly discussed
and debated topic that permeates everyday life and media reports almost daily, Mr. Ziobrowski’s
tweet should be read as protected political speech, not a threat to injure another.
II.

NONE OF THE RECOGNIZED EXCEPTIONS TO THE FIRST
AMENDMENT ARE APPLICABLE TO MR. ZIOBROWSKI’S POLITICAL
SPEECH
Despite such efforts to protect the sanctity of political speech, the Supreme Court has

created exceptions to protected speech such as incitement, Brandenburg v. Ohio, 395 U.S. 444,
447–449 (1969) (per curiam) (government is only permitted to “forbid or proscribe” advocacy
surrounding force and law violations where (1) “such advocacy is directed to inciting or
producing imminent lawless action” and (2) the advocacy “is likely to incite or produce such
action.”), obscenity,1 Roth v. United States, 354 U.S. 476, 484 (1957) (“But implicit in the
history of the First Amendment is the rejection of obscenity as utterly without redeeming social
importance”), and fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)
(“‘fighting’ words—those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace . . . are [not an] essential part of any exposition of ideas, and are
of such slight social value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality”).

1

Defendant anticipates that the Government will concede to the fact that his tweet does not contain obscenity and
thus does not analyze such exception at length here.

20

 a.

The True Threats Exception Does Not Apply in this Case

The political speech made by Mr. Ziobrowski was a vitriolic and sarcastic expression of
his outrage. It was neither specifically directed at a specific individual nor imminent. Within the
context of Mr. Ziobrowski’s history of making political points in like manner and the political
environment within which he made the speech, it did not constitute a true threat. Generally, the
First Amendment does not protect threats of physical violence. See R. A. V. v. St. Paul, 505 U.
S. 377, 388 (1992). However, statutes criminalizing threatening speech “must be interpreted with
the commands of the First Amendment clearly in mind,” and it is “true threats” that are devoid of
constitutional protections. Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam). Given
the importance of First Amendment protections surrounding political speech, courts have taken
care to separate “true threats” from “political hyperbole,” as “[t]he language of the political
arena, like the language used in labor disputes is often vituperative, abusive, and inexact.” Id. at
708. “We are mindful that in this nation there is a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wideopen, and that it may well
include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials.” Watts v. United States, 394 U.S. 705, 708 (1969) (quoting N.Y. Times Co. v. Sullivan,
376 U.S. 254, 270 (1964)).
“True threats” were defined by the Court as “those statements where the speaker means
to communicate a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359-360 (2003).
Furthermore, the Court noted that “a prohibition on true threats 'protect[s] individuals from the
fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people

21

 'from the possibility that the threatened violence will occur.'” Id. at 360. “True threats” also
include intimidation, “where a speaker directs a threat to a person or group of persons with the
intent of placing the victim in fear of bodily harm or death.” Id.
In United States v. Kelner, the Second Circuit recognized the importance of political
speech when it adopted “a narrow construction of the word ‘threat’ in the statute . . . 18 U.S.C. s
875(c), as approved in Watts.” United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir. 1976)
(finding “threats punishable consistently with the First Amendment were only those which
according to their language and context conveyed a gravity of purpose and likelihood of
execution so as to constitute speech beyond the pale of protected ‘vehement, caustic . . .
unpleasantly sharp attacks on government and public officials.’”). Under Kelner, “only
unequivocal, unconditional and specific expressions of intention immediately to inflict injury
may be punished” as these types of threats “are of the same nature as those threats which are . . .
‘properly punished every day under statutes prohibiting extortion, blackmail and assault without
consideration of First Amendment issues.’” Id., quoting Watts, 402 F.2d at 690. The Kelner court
further emphasized that it intended to narrow the scope of 18 U.S.C. § 875(c) to threats that are
“on its face and in the circumstances in which it is made is so unequivocal, unconditional,
immediate and specific as to the person threatened, as to convey a gravity of purpose and
imminent prospect of execution.” Id. In line with the Second Circuit’s approach in Kelner that
provides wide latitude to various forms of political speech, courts have recognized various
limitations to the true threat doctrine. Unlike in Kelner, where the Court reasoned that the
defendant’s specific, imminent, unambiguous statement constituted a threat of violence against
an individual, Mr. Ziobrowski did not speak with specificity, imminence, or unambiguity.

22

 Indeed, a communication may also fall short of a “true threat” due to a lack of specificity.
See United States v. Baker, 890 F. Supp. 1375, 1385 (E.D. Mich. 1995), aff’d sub nom. United
States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997) (holding that private emails sent between two
individuals that described “shared fantasies” about violent attacks on women did not constitute a
“true threat” and were thus protected under the First Amendment as they did not form an
“unequivocal, unconditional, immediate and specific threat conveying an imminent prospect of
execution”). Mr. Ziobrowki’s tweet also lacks the specificity required to constitute a true threat.
As in Baker, where the defendant simply expressed his desire to cause violence against women
over an email with another, Mr. Ziobrowski expressed his desire to see harm to the limited
audience of his Twitter followers. It also lacked any specificities in regard to when, how, why,
whom, etc. Unlike Jeffries, where the defendant sent a video of himself expressing his desire to
cause harm to judge and lawyers involved in his custody dispute, Mr. Ziobrowski failed to have
any personal connection to ICE or specify the harm intended. Indeed, unlike Jeffries, who stated:
“the sh*t needs to stop cause you're gonna lose your job/ And I guarantee you, if you don't stop,
I'll kill you,” Mr. Ziobrowski lacked such specificity. 2010 WL 4923335. Indeed, most of the
tweets that contain vulgar speech lacked the requisite specificity to consider the tweet more than
“political hyperbole.” See, c.f., United States v. Olson, 629 F. Supp. 889, 894 (W. D. Mich.
1986) (holding threats made in context of defendant’s political views not a threat).
A communication may fall short of forming a true threat where the speaker is “[m]erely
wishing or hoping that harm would come to another.” United States v. Kosma, 951 F.2d 549, 554
(3d Cir. 1991). In United States v. Daulong, the court held that the defendant’s communication
did not form a true threat where the defendant claimed that, if someone did not kill the President,
then the defendant “had a notion to do it himself” and he “hoped” somebody killed the president

23

 that night. United States v. Daulong, 60 F. Supp. 235, 236 (W.D. La. 1945). The court in
Daulong recognized that the defendant’s communication fell “considerably short of an
expression of determination or intent to do the act itself,” and noted that the defendant’s
communication “[i]n effect . . . says that the speaker feels like doing it, if someone else does not,
but here again, this cannot be construed as an intention, determination or purpose to perform the
deed.” Id. Importantly, the court recognized that the statute “does not penalize the imagining,
wishing or hoping that the act will be committed by someone else.” Id.; but see United States v.
Christenson, 653 F.3d 697 (8th Cir. 2011) (affirming defendant’s conviction where defendant
repeatedly and specifically threatened the lives of President Obama and his family through
emails sent to specific people that said “kill Obama MRS[.] OBAMA AND THE . . . KIDS!” and
“i (sic) want to see obama's (sic) blood spilled all over the white house make it pink” and stated
that he would kill the president if he could, accused the president of being a communist, accused
the president of committing treason, acknowledged he would be willing to go to jail); United
States v. Mann, No. 99-4115, 2000 WL 372243, at *1 (8th Cir. 2000) (upholding conviction
under 18 U.S.C. § 871(a) where defendant mailed a letter to the president stating that he “should
live no longer” and “change” was needed “by force if need be ... as we become your worst
dream.”). In these cases, the courts concluded that a reasonable recipient could conclude that the
threats “contained sufficient unambiguous threatening language” so as to constitute a true threat.
United States v. Mann, No. 99-4115, 2000 WL 372243, at *1 (8th Cir. 2000).
Here, Mr. Ziobrowski’s tweet fails to meet a “true threat” and resembles more closely
“political hyperbole” or a mere wish or hope that harm would come and thus lacked the
specificity required to constitute a true threat. As in Daulong, where the court failed to find the
intent necessary to constitute a true threat where the defendant expressed his desire for the

24

 President to be dead, Mr. Ziobrowski here only expressed a desire for harm to ICE, but lacked
the specific and present ability to do it himself. Indeed, Mr. Ziobrowski’s social media pages are
riddled with numerous instances of political hyperbole and his social media use is largely
expressive frustrations with the current administration. In light of the current political climate,
such expressions do not convey an explicit desire to cause harm but rather a frustration with the
administration’s treatment of immigrants. Mr. Ziobrowski is not the only commentator on social
media to express similar frustrations and opinions. In Christenson, the Eighth Circuit upheld the
conviction for the defendant who had twice in an email sent to the White House servers
expressed: “I HATE MY COUNTRY I HATE YOU ALL you like you pay others to lie fuck you
and your actors you god damn pieces of shit i want to see obama's (sic) blood spilled all over the
white house make it pink. GOD DAMN THE USA.” United States v. Christenson, 653 F.3d 697
(8th Cir. 2011). Here, Mr. Ziobrowski’s tweet was not mailed directly to the recipient as were the
threats in Christenson and Mann. Additionally, the tweet lacked the specific and unambiguous
language necessary to place a reasonable recipient in apprehension of imminent danger. In sum,
it is a constitutionally protected political speech.
b.

The Fighting Words Exception Does Not Apply in the Instant Case.

The Supreme Court has also carved out a narrow exception for “fighting words” which
are so inherently deleterious to social order, see Chaplinsky v. New Hampshire, 315 U.S. 568,
572 (1942); Cantwell v. Connecticut, 310 U.S. 296, 308 (1940), and so inherently unrelated to
the “robust” political debate necessary to a democratic society, see Watts, supra, 402 F.2d at 683
n.17, that the umbrella of the First Amendment does not protect the threat from governmental
restriction. In Chaplinsky, the Supreme Court recognized an exception for fighting words,
defined as “those which by their very utterance inflict injury or tend to incite an immediate

25

 breach of the peace.” 315 U.S. 568, 572. In Cohen v. California, the Supreme Court reversed the
conviction for a defendant who wore a jacket with the words “Fuck the draft,” in a courtroom to
protest the Vietnam War and the draft. 403 U.S. 15, 16 (1971). The Court determined “No
individual actually or likely to be present could reasonably have regarded the words on
appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of
the State's police power to prevent a speaker from intentionally provoking a given group to
hostile reaction.” Id. at 20.
The Lewis court determined that that fighting words exception “might require a narrower
application in cases involving words addressed to a police officer, because “a properly trained
officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average
citizen, and thus be less likely to respond belligerently to ‘fighting words.’” Lewis v. City of
New Orleans, 415 U.S. 130, 135 (1974). In City of Houston v. Hill, the Supreme Court
invalidated a city ordinance that criminalized any interruption of police officer because the
ordinance “criminalizes a substantial amount of constitutionally protected speech, and accords
the police unconstitutional discretion in enforcement.” 482 U.S. 451, 462, 466 (1987).
Here, Mr. Ziobrowski’s speech is similar to that in Cohen where both were intended to be
political expressions and not fighting words. Furthermore, as Mr. Ziobrowski did not direct the
tweet at the ICE agency specifically, no individual was “likely to be present” to have regarded
the words as a direct insult. Additionally, Mr. Ziobrowski is not a celebrity or political figure
with thousands of followers on Twitter and as a result, his tweet was likely not circulated to a
large audience where it could have been seen by ICE agents. Indeed, at the time of the tweet, Mr.
Ziobrowski had less than 500 followers and the post itself received zero “retweets” and only 2
“likes.” As in the Lewis case, where the Supreme Court determined that police officers are less

26

 likely to respond to fighting words, so too are ICE agents. Indeed, ICE is considered a part of the
executive branch and thus not unfamiliar with the current administration’s stance on immigration
and its duties in furtherance of such policies.
As in Hill, where the statute criminalizing interruptions of a police officer was found to
be unconstitutional for its arbitrary enforcement, so too should the statute here. As evidenced,
Mr. Ziobrowski is not the only Twitter user to express his political opinions online. Indeed,
President Trump, other members of the GOP, and individual supporters of Trump have
expressed violent or threatening sentiments at campaign rallies, in public, and online. Due to the
politically charged climate surrounding hate speech and anti-immigrant sentiment, the
Government is seeking arbitrary enforcement of a statute usually used to deter individuals from
making specific threats against specific enforcement officers.
However, where the speech is specifically directed at those involved in the arrest,
detention, and prosecution of a criminal defendant in an attempt to intimidate or secure the
release of such defendant, the threat may constitute extortionate threats. See United States v.
Tinico, 730 Fed. Appx. 581, 585 (10th Cir. 2018) (holding where defendant specifically
encouraged officers to search his vehicle, targeted those officers for harassment, and threatened
them on Facebook, the threats constituted true threats); United States v. White, 654 Fed. Appx.
956, 958 (11th Cir. 2016) (holding true threat existed where defendant sent emails and posted
online threats to kidnap, rape, and murder Florida state officials and their families for arresting
other members of American Front). In Tinico, the defendant, in an effort to protest marijuana
laws, falsely reported to CBP that his vehicle contained marijuana, engaged with officers as they
searched his vehicle, questioned the officers’ authority to enforce the laws, threatened to “have
[their] head,” as they searched, and then tried to instigate a shoot-out between himself and the

27

 officers on Facebook two days later. United States v. Tinico, 730 Fed. Appx. 581, 585 (10th Cir.
2018). Tinoco also commented: “I can tell you right now you ... are a superstar. I can see the
cameras everywhere.... Smile honey, ... you’re going to be famous.... Extra, extra, read all about
it. holes in your brand new outfit”; “[y]ou may quote me. I mean every fucking word.” Id. at 584.
Tinoco posted on Facebook the following messages directed at the magistrate judge who had
authorized the warrant: “I shall [figuratively speaking] cut your fucking head off with this shit ...
this is my machete ... for your ignorance does not constitute authority”; “when all is [said] and
done, someones (sic) mothafucking (sic) fingers are being cut off [speaking figuratively]. Are
they mine or yours?” Id. The court reasoned that these statements constituted true threats given
that the officers testified that they took them seriously and he repeatedly commented that he
“mean[t] every word,” and “You can quote me.” Id. In White, the court concluded that the
threats to kidnap, rape, and murder the judge and the officers involved in the prosecution of other
members of the American Front unless they released the members constituted a true threat.
United States v. White, 654 Fed. Appx. 956, 958 (11th Cir. 2016). The court concluded that the
threats were made in an attempt to secure the release of other neo-Nazi Southern Front members
being prosecuted on different charges. Id.
Unlike these cases, Mr. Ziobrowski’s statement was not made in an attempt to threaten or
extort law enforcement to perform a particular act. Furthermore, the tweet itself was not directed
to specific law enforcement or a specific person to whom Mr. Ziobrowski had a connection. The
statement was also not made in an effort to effect any change in the behavior or conduct of
specific law enforcement agents.

28

 c.

The Obscenity Exception Does Not Apply in the Instant Case.

In Miller v. California, the Supreme Court emphasized that “[i]n the area of freedom of
speech and press the courts must always remain sensitive to any infringement on genuinely
serious literary, artistic, political, or scientific expression.” 413 U.S. 15, 22 (1973). To determine
whether the speech is obscene. the basic guidelines for the trier of fact must be: (a) whether ‘the
average person, applying contemporary community standards' would find that the work, taken as
a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether
the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Id. Here,
the lack of sexual conduct or expression in the tweet itself prevents the Government from
claiming the obscenity exception applies.

CONCLUSION
Accordingly, the Defendant, by and through his counsel, moves this Honorable Court to
dismiss the charge against him.

Respectfully submitted,
/s/ Derege B. Demissie
________________________
Derege B. Demissie
DEMISSIE & CHURCH
929 Massachusetts Avenue, Suite 101
Cambridge, MA 02139
(617) 354-3944
BBO# 637544

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 CERTIFICATE OF SERVICE
I hereby certify that this document, filed through the ECF system, will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-registered participants on May 10, 2019.
/s/ Derege B. Demissie
DEREGE B. DEMISSIE

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