51:3 Bursting Bottles: Doubting the Objective-Only Approach to 18 U.S.C. § 875(c) in Light of United States v. Jeffries and the Norms of Online Social Networking

Abstract

Franklin Delano “Dale” Jeffries II made a very bad series of decisions when he wrote, performed, recorded, posted, and shared a music video threatening to kill the judge overseeing his daughter’s upcoming custody hearing. Because of these decisions, he was convicted under 18 U.S.C. § 875(c), which prohibits “transmit[ting] in interstate or foreign commerce any communication containing any threat . . . to injure the person of another.” A Sixth Circuit panel subsequently affirmed the conviction with the same judge writing two separate opinions.

Judge Sutton’s first opinion relied on precedent in reviewing the first reported case of a Section 875(c) prosecution involving a song or video. He reasoned that the statute covers “any threat,” including threats delivered in “old-fashioned ways or in the most up-to-date.” After all, this is not the first time that an “old [bottle] was filled with new wine.”

Judge Sutton’s second opinion doubted whether the precedent was right. Relying on the plain language of the statute, legislative history, background norms for construing criminal statutes, and distancing the issue from First Amendment implications, Judge Sutton’s second opinion penultimately proposed an alternative interpretation before asking another lawmaking body to allay, or accept, his doubts.

This Note follows up on Judge Sutton’s doubts and attempts to add to them. Following Judge Sutton’s lead, this Note advances the doubt that the substance and design of Section 875(c) has been misinterpreted in the courts. Further, this Note attempts to highlight the insufficient capacity of Section 875(c) in light of current communicative practices, social norms, and privacy expectations. Overall, this Note argues that Section 875(c) is an old bottle that should not be filled with new wine, or else the wine will expand as it ferments and burst the bottle.