PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF
APPEAL OF FLORIDA, FIFTH DISTRICT
petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, concurring in the denial of certiorari.
Perez is serving more than 15 years in a Florida prison for
what may have been nothing more than a drunken joke. The road
to this unfortunate outcome began with Perez and his friends
drinking a mixture of vodka and grapefruit juice at the
beach. Sentencing Tr. 24, App. to Pet. for Cert. (Sentencing
Tr.). As the group approached a nearby liquor store to
purchase additional ingredients for the mixture, which Perez
called a "Molly cocktail, " ibid., a store
employee overheard the group's conversation,
id., at 25. The employee apparently believed he was
referencing an incendiary "Molotov cocktail" and
asked if it would "burn anything up."
Ibid. Perez claims he responded that he did not have
"that type" of cocktail, and that the whole group
laughed at the apparent joke. Ibid. Imprudently,
however, the inebriated Perez continued the banter, telling
another employee that he had only "one Molotov
cocktail" and could "blow the whole place up."
App. C to Brief in Opposition 82. Perez later returned to the
store and allegedly said, "'I'm going to blow up
this whole [expletive] world.'" Id., at
121. Store employees reported the incident to police the next
day. Sentencing Tr. 15, 34.
State prosecuted Perez for violating a Florida statute that
makes it a felony "to threaten to throw, project, place,
or discharge any destructive device with intent to do bodily
harm to any person or with intent to do damage to any
property of any person." Fla. Stat. §790.162
(2007). The trial court instructed the jury that they could
return a guilty verdict if the State proved two elements.
First, the State had to prove the actus reus; that
is, the threat itself. The instruction defined a threat as
"a communicated intent to inflict harm or loss on
another when viewed and/or heard by an ordinary reasonable
person." App. F to Brief in Opposition 350. Second, the
State had to prove that Perez possessed the necessary
mens rea; that is, that he intended to make the
threat. Circularly, the instruction defined intent as
"the stated intent to do bodily harm to any person or
damage to the property of any person." Ibid.
This instruction permitted the jury to convict Perez based on
what he "stated" alone-irrespective of whether his
words represented a joke, the ramblings of an intoxicated
individual, or a credible threat. The jury found Perez
guilty, and because he qualified as a habitual offender, the
trial court sentenced him to 15 years and 1 day in prison.
Sentencing Tr. 44.
courts below and in his petition for certiorari, Perez
challenged the instruction primarily on the ground that it
contravenes the traditional rule that criminal statutes be
interpreted to require proof of mens rea, see
Elonis v. United States, 575 U.S.__, __-__
(2015) (slip op., at 9-13). In my view, however, the jury
instruction- and Perez's conviction-raise serious First
Amendment concerns worthy of this Court's review. But
because the lower courts did not reach the First Amendment
question, I reluctantly concur in the Court's denial of
certiorari in this case.
First Amendment's protection of speech and expression
does not extend to threats of physical violence. See
R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992).
Statutes criminalizing threatening speech, however,
"must be interpreted with the commands of the First
Amendment clearly in mind" in order to distinguish true
threats from constitutionally protected speech. Watts v.
United States, 394 U.S. 705, 707 (1969) (per
curiam). Under our cases, this distinction turns in part
on the speaker's intent.
suggested as much in Watts. There, we faced a
constitutional challenge to a criminal threat statute and
expressed "grave doubts" that the First Amendment
permitted a criminal conviction if the speaker merely
"uttered the charged words with an apparent
determination to carry them into execution."
Id., at 708, 707 (emphasis and internal quotation
v. Black, 538 U.S. 343 (2003), made the import of the
speaker's intent plain. There, we considered a state
statute that criminalized cross burning "'with the
intent of intimidating any person.'" Id.,
at 348 (quoting Va. Code. Ann. §18.2-423 (1996)). We
defined a "true threat" as one "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." 538 U.S., at 359.
We recognized that cross burning is not always such an
expression and held the statute constitutional "insofar
as it ban[ned] cross burning with intent to
intimidate." Id., at 362 (emphasis added);
id., at 365 (plurality opinion).
four-Member plurality went further and found unconstitutional
a provision of the statute that declared the speech itself
"'prima facie evidence of an intent to
intimidate.'" Id., at 363-364. The plurality reached
this conclusion because "a burning cross is not always
intended to intimidate." Id., at 365. Two
separate opinions endorsed this view. See id., at
372 (Scalia, J., joined by THOMAS, J., concurring in part,
concurring in judgment in part, and dissenting in part)
("The plurality is correct in all of this");
id., at 386 (Souter, J., joined by KENNEDY and
GINSBURG, JJ., concurring in judgment in part and dissenting
Watts and Black make clear that to sustain
a threat conviction without encroaching upon the First
Amendment, States must prove more than the mere utterance of
threatening words-some level of intent is required.
And these two cases strongly suggest that it is not enough
that a reasonable person might have understood the words as a
threat-a jury must find that the speaker actually intended to
convey a threat.
jury instruction in this case relieved the State of its
burden of proving anything other than Perez's
"stated" or "communicated" intent. This
replicates the view we doubted in Watts, which
permitted a criminal conviction based upon threatening words
and only "'an apparent determination to
carry them into execution.'" 394 U.S., at 707. And
like the prima facie provision in Black, the trial
court's jury instruction "ignore[d] all of the
contextual factors that are necessary to ...