United States v. Weiss
| Decision Date | 28 July 2020 |
| Docket Number | Case No. 20-cr-00013-CRB-1 |
| Citation | 475 F.Supp.3d 1015 |
| Parties | UNITED STATES of America, Plaintiff, v. Howard WEISS, Defendant. |
| Court | U.S. District Court — Northern District of California |
Christina T. Liu, United States Attorney's Office, San Francisco, CA, for Plaintiff.
Angela Chuang, Office of the Federal Public Defender, San Francisco, CA, for Defendant.
CHARLES R. BREYER, United States District Judge Over the course of a year, Defendant Howard Weiss anonymously sent eight vitriolic messages to Senate Majority Leader Mitch McConnell through the Senator's official website contact form. Weiss is charged with harassing use of a telecommunications device, a violation of 47 U.S.C. § 223(a)(1)(C). See Indictment (dkt. 1). He now brings a motion to dismiss the indictment, arguing that Section 223(a)(1)(C) is unconstitutional both on its face and as applied to him. Mot. (dkt. 15). Weiss's messages were hateful, violent, and racist, but they were also protected speech. The statute is unconstitutional as applied to him. Accordingly, the Court grants the motion and dismisses the indictment.
Senator McConnell's official website invites the public to contact him electronically through a fillable form. Chuang Decl. Ex. A (Senate Form) (dkt. 16-1). The website states, "I welcome your thoughts and concerns and would like to encourage you to share them with me." Id. It adds, "I look forward to hearing from you!" Id. Between October 2018 and October 2019, Weiss, using fictitious aliases, wrote eight messages through the online contact form. See Chuang Decl. Ex. B (Indicted Messages) (dkt. 16-2). To put it mildly, the messages expressed Weiss's intense displeasure with Senator McConnell's politics and the ill well he feels toward Senator McConnell. Id.
On October 2, 2018, Weiss, who lives in the Northern District of California, used his cell phone to send an email to Senator McConnell through the Senator's online form. Opp'n Ex. A1 (dkt. 19-2); Opp'n Ex. A11. He later explained that he used Kentucky aliases to ensure that the Senator would receive the emails. Opp'n Ex. A11 at 1:13–1:25. The October 2, 2018 email states:
Opp'n Ex. A1. In a November 2019 interview with law enforcement, Weiss admitted to sending the email and stated that his intent was to harass Senator McConnell. Ex. A11 at 5:19–30, 3:11–3:20, 3:27–4:44.
On October 22, 2018, Weiss used his cell phone to send an email to Senator McConnell through the form using another alias:
Opp'n Ex. A2 (dkt. 19-3); Opp'n Ex. A11 at 4:50–5:17, 6:40–6:45 (Weiss admitting he sent emails via cell phone). Weiss stated that his intent in sending the email was to harass Senator McConnell. Opp'n Ex. A11 at 3:11–3:20, 3:27–4:44. In November of 2018, Weiss spoke with a law enforcement officer about his October 22, 2018 email. Opp'n Ex. A9 (dkt. 19-10). The officer suggested that Weiss be "mindful" because people could interpret his email as a threat. Id. at 6:15–6:45.
On January 3, 2019, Weiss used his cell phone to send an email to Senator McConnell through the form, using an alias, without revealing his identity, and intending to harass the Senator:
Opp'n Ex. A3 (dkt. 19-4) (excerpted); Ex. A11 at 3:11–3:20, 3:27–4:44, 4:50–5:17, 6:40–6:45.
On April 9, 2019, Weiss used his cell phone to send an email to Senator McConnell through the form, using an alias from Kentucky and with the intent to harass the Senator:
Opp'n Ex. A4 (dkt. 19-5) (excerpted); Ex. A11 at 3:11–3:20, 3:27–4:44, 4:50–5:17, 6:40–6:45. In May 2019, Weiss met with law enforcement to discuss the April 9, 2019 email. Opp'n Ex. A10 (dkt. 19-11). He explained that his email was about the "elections coming up" and the "D.C. Resistance," and how the Resistance is against the President, the cabinet, and the Republican Congress. Id. at 2:05–2:11, 3:04–3:12. The officer told him to "be mindful." Id. at 4:05–4:25.
On June 5, 2019, Weiss used his cell phone and a fictitious alias to send the following email to Senator McConnell:
Opp'n Ex. A5 (dkt. 19-6); Opp'n Ex. A11 at 4:50–5:17, 6:40–6:45. He later admitted (when asked whether it was a threat or harassment) that his intent was harassment. Opp'n Ex. A11 at 3:11–3:20. He explained that he was not motivated by what Senator McConnell had done to him but by what the Senator was doing to "the world, and our politics and our government and he's a piece of shit." Id. at 3:30–3:43.
On June 19, 2019, Weiss used his cell phone to send Senator McConnell the following message:
Opp'n Ex. A6 (dkt. 19-7); Opp'n Ex. A11 at 4:50–5:17, 6:40–6:45. He did so with the intent to harass Senator McConnell. Opp'n Ex. A11 at 3:11–3:20, 3:27–4:44.
On July 19, 2019, Weiss used his cell phone and a fictitious alias to send the following email to Senator McConnell with harassing intent:
Opp'n Ex. A7 (dkt. 19-8); Opp'n Ex. A11 at 3:11–3:20, 3:27–4:44, 4:50–5:17, 6:40–6:45.
On October 16, 2019, Weiss used his cell phone to send the following email to Senator McConnell:
Opp'n Ex. A8 (dkt. 19-9); Opp'n Ex. A11 at 4:50–5:17, 6:40–6:45. Weiss used a fictitious alias and his intent was to harass Senator McConnell. See Opp'n Ex. A11 at 1:13–1:25, 6:11–6:35, 3:08–3:20.
On November 13, 2019, law enforcement officers went to Weiss's house to execute a search warrant, and they conducted a recorded, non-custodial interview with him. See Opp'n Ex. A11. Weiss admitted that he used his cell phone to send the eight messages to Senator McConnell and that he did so to harass, not threaten, the Senator. Id. at 3:08–3:20, 4:50–5:17, 5:39–6:04, 6:40–6:45. He stated that he decided to harass Senator McConnell because the Senator made political decisions with which he disagreed. Id. at 3:27–3:50, 5:39–6:04. Weiss admitted that he used racial slurs in his emails in furtherance of his intent to harass the Senator. Id. at 4:00–4:44 ("that's just terrible harassment, that's just anger and bullshit."). He further stated that he used Kentucky aliases to ensure that Senator McConnell would receive the emails. Id. at 1:13–1:25. The law enforcement officer suggested that Weiss be "mindful," because other people could perceive his email as a threat. Id. at 6:15–6:45.
On January 16, 2020, a grand jury returned a one-count...
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