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Panel OKs Conviction for Email to Talk Show Host

11th circuit sides with feds in circuit split over free speech

, Daily Report

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A woman's late-night, migraine-fueled email to a talk show host saying that she would go to a government building and show "government hacks" what the Second Amendment "is all about" may not have been intended as an actual threat, but a federal appeals court won't allow her to hide under the First Amendment, affirming her federal conviction for sending a threatening communication. The court said the government didn't have to prove the woman actually intended to cause anyone fear.

The interpretation of a 2003 Supreme Court decision on the issue, perhaps more relevant than ever in an age of a polarized politics and easy Internet access for most, is one that has divided the federal courts of appeal. A Miami lawyer said he hopes to take the Nov. 27 ruling by the U.S. Court of Appeals for the Eleventh Circuit up to the U.S. Supreme Court.

The case stems from an email Ellisa Martinez sent to Fort Lauderdale radio talk show host Joyce Kaufman in November 2010.

According to a brief filed by Martinez' lawyer, Martinez was up late, unable to sleep because of a migraine, watching the news. She saw coverage of remarks that Kaufman had made to a gathering in Kentucky in which Kaufman said she supported the "extermination" of left-wing politicians. Having taken migraine medication and consumed some wine, Martinez was inspired by the coverage of Kaufman's remarks to write her an email, according to the defense brief.

In her anonymous email, Martinez said she was glad to hear Kaufman "encourage us to exercise our second amendment gun rights." Martinez continued that she was "planning something big around a government building here in Broward County, maybe a post office, maybe even a school, I'm going to walk in and teach all the government hacks working there what the 2nd amendment is all about."

According to the appeals court opinion, the radio station where Kaufman worked received an anonymous call a few hours later. The caller told station officials that her husband had sent the email and that he was planning to open fire at a nearby school. The radio station contacted the police, according to the defense brief, prompting police to institute a lockdown on all Broward County schools for about three hours.

Investigators soon discovered that both communications were sent by Martinez, according to the appeals court decision. She was arrested and charged with violating a federal law against sending a threatening communication.

Martinez's lawyers moved to dismiss the indictment on First Amendment grounds. After U.S. District Judge K. Michael Moore denied the motion, Martinez agreed to plead guilty in exchange for the government's agreement that it would recommend Martinez receive a reduction in her sentence for accepting responsibility and that it would recommend a sentence on the low end of the range set by the federal sentencing guidelines. Martinez also was allowed to reserve the right to appeal the denial of her motion to dismiss. According to Martinez's lawyer, Martinez stipulated that she "knowingly and wilfully" sent the email but didn't agree that she intended for her words to be taken seriously.

Moore sentenced Martinez to two years in prison—a sentence that was, according to the defense, higher than that recommended by the sentencing guidelines. He also ordered her to pay $5,350.89 in restitution to the police.

Martinez's lawyer, Samuel Randall, argued on appeal that the indictment of Martinez was flawed in violation of the First Amendment because it did not allege Martinez actually intended to intimidate or induce fear.

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