Michigan Appeals Court Says State’s ‘Terroristic Threat’ Statute Is Unconstitutional

Here's another win for free speech that probably isn't going to please most people. But that's how it goes. Fourth Amendment rulings reinforce protections while coming down on the side of accused criminals. First Amendment jurisprudence tends to be generated by people who seem to have nothing worthwhile to say. That's the way it goes. And the system works, even if the plaintiffs in precedent-generating cases are rarely the most sympathetic of individuals.

In this case, a state law dealing with terroristic threats" has been struck down by the Michigan Court of Appeals. And, of course, the speech that generated criminal charges and the subsequent appeal isn't going to earn the criminal defendant many admirers. Here's how this is all began, as Kara Berg reports for the Detroit News:

The judgesruled Thursdaythat the charges Wayne County prosecutors filed against Michael Kvasnicka, of Grosse Ile, were facially unconstitutional" and ordered them to be dismissed.

Kvasnicka was accused of making a false terrorism report when he sent a message to a Trenton Public Schools student on social media in September 2023 stating she was not gonna be laughing once I come to your school and shoot it up or blow it up like [C]olumbine," according to the Court of Appeals order.

The law is already weird when it rephrases something that might be considered a terroristic threat" as a false terrorism report." I understand legislative writing is rarely as clear and concise as it needs to be, but the plain English interpretation of the that phrase would suggest it criminalizes falsely reporting terroristic activity, rather than seeking to stoke fear by suggesting terroristic behavior might be forthcoming.

Oddly enough, the US Supreme Court had a hand in this. It ruled in June 2023 that the law was unconstitutionally vague because it did not require the government to prove accused suspects were being criminally reckless when they posted messages like the one quoted above.

The court found the statute is unconstitutional because it doesn't require prosecutors to prove that Kvasnicka acted recklessly - that he disregarded a risk that the message would be viewed as threatening violence - when he sent the social media message.

The state tried to argue its way past this by claiming the prosecutor's grand jury instructions complied with the SCOTUS ruling. It said that the statue only requires it to show proof (however thin) that the person making the statement would reasonably" expect others to seriously" consider it to be an assertion of an intent to inflict harm or damage."

But, as the opinion [PDF] points out, that's simply not true. That's not what the law says and that's not what prosecutors did when addressing the grand jury.

The prosecution contends that this instruction requires more than a reckless state of mind because it requires the jury to find the defendant understood that the language he used would reasonably cause others to believe that he was expressing an intent to inflict harm or damage. The prosecution is incorrect. Although the last sentence asks the jury to consider how the threat is perceived by others," its reference to a reasonable person makes clear that the jury is tasked with deciding what a reasonable person in the defendant's shoes would have thought, not necessarily what the defendant would have thought himself. This language is not aligned with the Counterman standard, which requires the prosecution to show a defendant's subjective intent, by at least a standard of recklessness.

The court is also a bit nonplussed by this particular line of defense from the prosecution:

Moreover, we are perplexed by the prosecution's decision to defend the constitutionality of MCL 750.543m by relying upon the jury instructions rather than the language used in the statute. When considering whether a statute is or is not constitutional, it is the words of the statute that must be examined, not the model jury instructions.

Faulty jury instructions are their own constitutional problem, but tend to implicate the 5th and 6th Amendments, rather than the First Amendment, which is the real issue here. An unconstitutionally vague statute is still unconstitutional, even if prosecutors refine the wording of jury instructions in an attempt to belatedly fix the unconstitutional parts of the law they're using to charge someone.

The final ruling (at least to this point) is this:

In summary, because there is no statutory language suggesting that the prosecutor must prove that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence, we conclude that MCL 750.543m(1)(a)(i) is facially unconstitutional.

The law is dead until this ruling is appealed and/or it's rewritten. The state has already indicated it prefers the former option but it's tough to see how putting this in front of the state's top court is going to help it bypass the 2023 ruling handed down by the nation's top court. The state still has options to deter violence and punish true threats. What it doesn't need is a half-assed option that does damage to the First Amendment.