                       RECORD IMPOUNDED

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0152-18T6

STATE OF NEW JERSEY,

     Plaintiff-Respondent,               APPROVED FOR PUBLICATION

                                                 November 8, 2018
v.
                                             APPELLATE DIVISION

QUIASIA N. CARROLL,

     Defendant-Appellant.
___________________________________

           Submitted October 15, 2018 – Decided November 8, 2018

           Before Judges Koblitz, Ostrer and Mayer.

           On appeal from Superior Court of New Jersey, Law
           Division, Camden County, Complaint No. W-2018-
           005075-0408.

           Joseph E. Krakora, Public Defender, attorney for
           appellant (M. Edward Rivas, Assistant Deputy Public
           Defender, of counsel and on the brief).

           Mary Eva Colalillo, Camden County Prosecutor,
           attorney for respondent (Kevin J. Hein, Assistant
           Prosecutor, of counsel and on the brief).

     The opinion of the court was delivered by

OSTRER, J.A.D.
        Defendant Quiasia N. Carroll appeals from the trial court's order

detaining her on charges of fourth-degree cyber-harassment, N.J.S.A. 2C:33-

4.1(a)(2), and second-degree retaliation against a witness, N.J.S.A. 2C:28-5(b),

as set forth in complaint-warrant W-2018-005075-0408. Because we disagree

with the trial court's finding of probable cause as to the former charge, and

discern significant legal impediments to successful prosecution of the latter

one, we reverse, and remand for reconsideration.

                                          I.

        The charges relate to four posts that defendant allegedly made on a

Facebook page assigned to a person with the user ID, Klo Klό. For purposes

of our discussion, we will assume that defendant is Klo Klό.           The posts

coincided with and followed the June 21, 2018, conviction of Tyhan Brown,

who was charged with murder of a child and the attempted murder of an adult. 1

The State alleges that defendant's posts referred to a prosecution witness at

Brown's trial.

        In the first post, made on the day of Brown's conviction and

accompanied by the witness's photo, the comments were, at least in part,

addressed to the witness. In coarse language and slang, defendant called the



1
    The record does not reflect the specifics of the jury's verdict.


                                                                        A-0152-18T6
                                           2
witness a "rat," and criticized him for lying in return for remuneration, and for

being untrustworthy: 2

            lying ass RAT ass nigga! fuck you! I swear I use to
            tell butt & jo all the time don't trust this nigga! how tf
            (the fuck) you go against ya mans for some chump
            change!! I'll never respect you!

      The next day, defendant posted three more comments, each evidently

addressed to the public generally, although we may presume the witness

viewed them as well. In the first, along with the witness's photo, the poster

identified the witness by name and nickname. The comment stated:

            PUBLIC SERVICE ANNOUNCENT RAT ALERT
            THIS ONE OF THE SCARIEST THINGS EVER
            THIS NIGGA HOLD GUNS & RUN TO THE COPS
            NEVER KNOW WHAT HE GOT UP HIS SLEEVE
            NEXT STAY AWAY FROM THIS RATATOUILLE
            MICKEY MOUSE STUART LITTLE ASS NIGGA
            TELL A FRIEND TO TELL A FRIEND [name
            deleted] AKA SNITCHOS I MEAN [nickname
            deleted] IS A FUCKING RATTTTTT CHECK HIS
            SHIRT & HIS PANTS I THINK HE WIRED.

      Also that day, defendant posted a photo of two uniformed Camden

County Metro Police Officers talking, as they stood in front of an unidentified

person in the street. She added the comment: "[nickname deleted] really



2
   We reproduce the posts exactly as presented in the affidavit of probable
cause, except, in the exercise of caution, we have deleted the witness's name
and nickname.


                                                                         A-0152-18T6
                                        3
friends w all the cops" – referring to the witness by what the State alleges is

another one of his nicknames.

      In the final posting, defendant commented:

            [Nickname deleted] just living his life like it's golden
            posting pictures & shit w glasses on like he cool BOY
            YOU A FUCKING RAT! ! ! hope somebody blow
            them glasses tf (the fuck) off his face

      The State alleges that Facebook made it aware of the posts on August

13, 2018. The witness allegedly asked defendant to remove the posts and she

refused. The State alleges that the witness feared for his safety and left his

home. Defendant was arrested on August 29, 2018. Incident to her arrest,

officers allegedly seized drugs on her person, which led to multiple third -

degree possession and possession-with-intent-to-distribute charges, and

second-degree within-500-feet-of-public-property charges, as set forth in

complaint-warrant W-2018-005372-0408.            See N.J.S.A. 2C:35-10(a)(1);

N.J.S.A. 2C:35-5(b)(3); N.J.S.A. 2C:35-7.1(a).

                                      II.

      The State sought defendant's detention on the retaliation and cyber-

harassment charges. The Public Safety Assessment (PSA) stated that, at the

time of her arrest, defendant had two pending charges for the disorderly

persons offense of hindering, N.J.S.A. 2C:29-3(b)(4), dating from February

and September 2016. Her sole prior conviction, in January 2016, was for a

                                                                       A-0152-18T6
                                       4
March 2015 disorderly persons shoplifting offense. Defendant failed to appear

in court four times, in 2015 and 2016, in connection with the hindering and

shoplifting charges. According to a certified driver abstract, defendant also

failed to appear in connection with motor vehicle matters three times in 2016

and once in 2018; and her driver's license was suspended through May 2021.

      Pretrial Services recommended no release based on an elevated risk

score. Defendant scored six on the failure-to-appear scale, and four on the

new-criminal-activity scale. The PSA did not include a flag for new violent

criminal activity. 3

      Defense counsel contended that defendant's Facebook posts were

protected speech under the First Amendment. Counsel questioned whether

defendant committed an "unlawful act," which is an element of the retaliation

offense. Counsel also argued that the Facebook posts did not include "lewd,

indecent, or obscene" statements, an essential element of the cyber-harassment

offense charged.

      The State responded that the "unlawful act" in the retaliation offense was

"making communications which include threats of force via social media."

3
  The PSA erroneously included the retaliation and cyber-harassment charges
as "pending charge[s] at the time of offense." See Public Safety Assessment,
New Jersey Risk Factor Definitions 3 (Mar. 2018). However, we understand
that error did not affect the scores, inasmuch as defendant had the other
pending hindering charges.


                                                                        A-0152-18T6
                                       5
The prosecutor did not specifically address the defense argument regarding the

"lewd, indecent, or obscene" element of cyber-harassment. The prosecutor

also asserted that the communications were made during and after the trial,

although the affidavit of probable cause asserted that the communications were

made on the day of conviction and the next day.

      Although the trial court released defendant on Level Three monitoring

on the drug-related complaint, the court detained her, upon the State's motion,

on the retaliation and cyber-harassment complaint. The court found probable

cause that defendant committed the charged offenses.        In support of its

probable cause finding, the court cited the complaint-warrant and affidavit of

probable cause.4 The court specifically rejected defendant's First Amendment

argument, concluding that the Facebook posts did not fall within protected

speech.   The court did not address the defense argument that defendant's

statements were not lewd, indecent, or obscene.

      The court found by clear and convincing evidence that no amount of

monetary bail, non-monetary conditions, or combination of the two would

reasonably assure: defendant's appearance in court when required; the




4
   The court also cited the PSA and the defendant's driver abstract, although
their connection to a probable cause finding is unclear.


                                                                       A-0152-18T6
                                      6
protection of the safety of any other person or the community; and that the

defendant will not obstruct or attempt to obstruct the criminal justice process.

      As for the reasons for detention, the court cited: (1) the offenses

charged; (2) the weight of evidence against defendant, "to wit, the Facebook

postings"; (3) defendant's history and characteristics, including her record

concerning appearance at court proceedings; (4) "the nature and seriousness of

the danger to any other person or the community should this defendant be

released," adding a reference to the drug charges; (5) "the nature and

seriousness of the risk of obstructing or attempting to obstruct the criminal

justice process that would be posed by the defendant's release," noting

"potential for witness intimidation Facebook threats – retaliation and cyber

harassment during homicide trial"; and (6) Pretrial Services' recommendation

of no release, noting the risk scores for failure to appear and new criminal

activity.

      The court added the following additional reasons:

            This murder case had gang mentions and the key
            witness was actually relocated to another state based
            upon fears of retaliation – the statements were not
            read into the record based upon their nature but were
            specifically included in the court's determination as a
            clear threat to the witness or others involved in the
            homicide case.

      On appeal, defendant presents the following points:



                                                                         A-0152-18T6
                                        7
            I.  THE FACTS AS ALLEGED FAILED TO
            ESTABLISH PROBABLE CAUSE THAT THE
            DEFENDANT HARMED ANYONE BY AN
            UNLAWFUL ACT AND NEITHER WAS FORCE
            EVER THREATENED BY THE DEFENDANT AS
            REQUIRED BY THE RETALIATION STATUTE.
            NEITHER DO THE FACTS ALLEGE THAT POSTS
            OF A LEWD, INDECENT, OR OBSCENE
            MATERIAL WERE POSTED AS 2C:33-4.1a(2)
            REQUIRE.

            II.  EVEN IF THE COURT FOUND PROBABLE
            CAUSE, BECAUSE MS. CARROLL WAS NOT
            CHARGED WITH MURDER NOR AN OFFENSE
            WITH A PO[SS]IBLE LI[]FE SENTENCE, HAD NO
            INDICTABLE CONVICTIONS, NO VIOLENT
            CONVICTIONS, NO FINAL DV REST[R]AINING
            ORDERS,   HAD    NO     PENDING   VIOLENT
            CHARGES, NO JAIL SENTENCES, NO JUVENILE
            RECORD, AND WAS NOT ON PROBATION OR
            PAROLE THERE WERE CONDITIONS WHICH
            COULD HAVE REASONABLY ASSURED THE
            COURT OF THE GOALS OF THE CJRA AND THE
            COURT SHOULD HAVE FOUND THAT THE
            STATE FAILED TO REBUT THE PRESUMPTION
            OF RELEASE.

Defendant renews her arguments that probable cause was not established, and

her statements were protected by the First Amendment.

                                      III.

      We review the trial court's decision to detain a defendant for an abuse of

discretion. State v. S.N., 231 N.J. 497, 515 (2018). We consider whether the

trial court rested its decision on an impermissible basis, or failed to consider

relevant factors. Ibid. We are not obliged to defer to "a decision based upon a

                                                                        A-0152-18T6
                                       8
misconception of the law." Ibid. (quoting State v. C.W., 449 N.J. Super. 231,

255 (App. Div. 2017)). We consider de novo issues of law such as statutory

interpretation. State v. Pinkston, 233 N.J. 495, 507 (2018); S.N., 231 N.J. at

515.    In particular, we are obliged to independently examine whether

defendant's speech is protected by the First Amendment. See Hurley v. Irish-

Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 567 (1995)

(identifying appellate court's "constitutional duty to conduct an independent

examination of the record as whole, without deference to the trial court" in

reviewing claim of protected speech).

       Applying that standard, we conclude that the trial court misconceived

the strength of defendant's legal challenge to the complaint.     Defendant's

arguments pertain to whether the State has established probable cause that

defendant committed the predicate offenses, which is "a prerequisite to

extended restraint of liberty." State v. Ingram, 230 N.J. 190, 202, 206 (2017)

(quoting Gerstein v. Pugh, 420 U.S. 103, 114 (1975)); N.J.S.A. 2A:162-

19(e)(2); R. 3:4A(b)(2).   "[I]f . . . the State does not meet its burden of

showing probable cause, the defendant must be released . . . ."       State v.

Dickerson, 232 N.J. 2, 23 (2018).

       "To demonstrate probable cause, the State must show the police had a

'well grounded suspicion that a crime ha[d] been committed,' and that the



                                                                      A-0152-18T6
                                        9
defendant committed the offense." Ingram, 230 N.J. at 213 (quoting State v.

Gibson, 218 N.J. 277, 292 (2014)). The State need produce "'more than a mere

suspicion of guilt,' but 'less evidence than is needed to convict at trial.'" Id. at

213-14 (quoting Gibson, 218 N.J. at 292; then quoting State v. Brown, 205

N.J. 133, 144 (2011)).      "[P]robable cause requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity."

Pinkston, 233 N.J. at 509 (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13

(1983)).

      Defendant's argument also addresses the "weight of the evidence against

the eligible defendant," which is a factor in the pretrial detention decision.

N.J.S.A. 2A:162-20(b). The "weight of the evidence" factor is another way of

evaluating "the strength of the government's case." See State v. Stewart, 453

N.J. Super. 55, 70 (App. Div. 2018) (citing 18 U.S.C. § 3142(g)(1) and (2)).

The weight of the evidence factor is important because it reflects upon whether

a person is likely to appear, or to pose a danger to a person or the community.

See United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985)

(interpreting analogous "weight of the evidence factor" under federal law, 18

U.S.C. § 3142(g)). Assuming there is probable cause to believe a defendant

committed the offense, if the weight of the evidence is weak, then the

defendant may be more willing to put the State to the test of a trial, reducing



                                                                           A-0152-18T6
                                        10
the risk of a failure to appear. See State v. Engel, 99 N.J. 453, 460 (1985)

(noting that a "fair likelihood" of conviction increases the "urge to abscond")

(quoting State v. Konigsberg, 33 N.J. 367, 377 (1960)).

      Also, if the weight of the evidence is weak, then a court may conclude it

is less likely a defendant actually committed the offense. That would allow a

court to conclude it less likely that the defendant would, if released, pose a

danger to the community – assuming the offense involved harm to the

community – or pose a threat to the integrity of the criminal justice process –

assuming the offense implicated interference with that process. See United

States v. Taylor, 289 F. Supp. 3d 55, 64-69 (D.D.C. 2018) (discussing impact

of "weight of the evidence" factor in detention hearing under 18 U.S.C. §

3142(g)(2)).

      Whether the State established probable cause necessarily implicates

whether defendant's alleged statements alone constitute a crime, since the State

has presented no context for the statements, except that they pertained to a

State witness at a homicide trial involving an alleged gang member.

Defendant raises statutory and constitutional arguments that the State has n ot

demonstrated probable cause.

      Turning first to the statutory contentions, defendant contends the alleged

facts do not match the elements of the charged offenses.         The State has



                                                                        A-0152-18T6
                                      11
charged defendant with cyber-harassment under N.J.S.A. 2C:33-4.1(a)(2). The

offense includes, as an essential element, the posting of "lewd, indecent, or

obscene material." Ibid. The statute declares a person guilty of fourth-degree

cyber-harassment:

            if, while making a communication in an online
            capacity via any electronic device or through a social
            networking site and with the purpose to harass
            another, the person . . . knowingly sends, posts,
            comments, requests, suggests, or proposes any lewd,
            indecent, or obscene material to or about a person with
            the intent to emotionally harm a reasonable person or
            place a reasonable person in fear of physical or
            emotional harm to his person

            [Ibid. (emphasis added).]

The Facebook posts were indisputably coarse and insulting. But, it is difficult

to discern how they constitute "lewd, indecent, or obscene material." Notably,

the complaint cited N.J.S.A. 2C:33-4.1(a)(2), but omits any reference to the

"lewd, indecent, or obscene material" element of the offense.         In its brief

opposing defendant's appeal, the State asserts only that defendant's posts were

"indecent," apparently conceding that they were neither lewd nor obscene.

      The Criminal Code does not define "indecent." 5 However, the term is

generally associated with nudity or sexuality, as our cases on indecent


5
  By contrast, the Code separately defines the offense of lewdness, N.J.S.A.
2C:14-4, and obscene material, N.J.S.A. 2C:34-3(a)(1).


                                                                         A-0152-18T6
                                        12
exposure have discussed. See, e.g., State v. Vogt, 341 N.J. Super. 407, 416

(App. Div. 2001); Borough of Belmar v. Buckley, 187 N.J. Super. 107, 113

(App. Div. 1982).      Chapter 34 of the Criminal Code is entitled "Public

Indecency" and includes prohibitions on prostitution, obscenity, sexually

oriented businesses, and related crimes. See N.J.S.A. 2C:34-1 to -7.

        In sum, since "indecent" is associated with nudity or sexuality – neither

of which appear in defendant's posts – we find not even a well-grounded

suspicion that defendant committed cyber-harassment under N.J.S.A. 2C:33-

4.1(a)(2).6 Therefore, the trial court erred in finding probable cause for the

cyber-harassment charge.

        Turning to the retaliation charge, the State alleges that defendant has

"harm[ed] another by an unlawful act with purpose to retaliate for or on

account of the service of another as a witness or informant." N.J.S.A. 2C:28 -

5(b).      The complaint alleges that the unlawful act was "making

6
  The State did not charge defendant with cyber-harassment by direct threats,
either by threatening to injure or harm a person or property, or by threatening
to commit some other crime against a person or property. See N.J.S.A. 2C:33-
4.1(a)(1) (including, as an element of cyber-harassment, "threaten[ing] to
inflict injury or physical harm to any person or the property of any person");
N.J.S.A. 2C:33-4.1(a)(3) (including, as an element of cyber-harassment,
"threaten[ing] to commit any crime against the person or the person's
property"); see also State v. Burkert, 231 N.J. 257, 274 (2017) (stating that
"[t]he cyber-harassment statute limits the criminalization of speech mostly to
those communications that threaten to cause physical or emotional harm or
damage").


                                                                         A-0152-18T6
                                        13
communications including threats of force via social media." The threat of

force raises the crime to the second-degree.       Ibid.   We assume, without

deciding, the "threat of force" element may be satisfied, even if the speaker

does not intend to carry it out personally or to have someone carry it out for

the speaker.

      However, the State does not identify a Criminal Code provision that

would render the alleged "threats of force" an "unlawful act." The State does

not contend that the predicate "unlawful act" is the alleged cyber-harassment,

which, in any event, we have concluded lacks probable cause. Since we must

narrowly construe a provision that criminalizes expressive activity, see State v.

Burkert, 231 N.J. 257, 277 (2017), we presume the State will ultimately need

to identify the statute that renders the threat of force unlawful. Compare State

v. Robinson, 289 N.J. Super. 447, 454-55 (App. Div. 1996) (stating that a jury

need not identify which offense a burglar had the "purpose to commit . . .

therein," N.J.S.A. 2C:18-2(a), upon unlicensed entry where the burglar's intent

was not at issue), with State v. Jenkins, 234 N.J. Super. 311, 315-16 (App.

Div. 1989) (stating that in a prosecution under N.J.S.A. 2C:39-4(a), a court

must instruct a jury as to the possible unlawful purposes for which a defendant

possessed a firearm where possession may also have been for a lawful

purpose).



                                                                        A-0152-18T6
                                       14
      Since the elements of retaliation include both "an unlawful act" and a

"purpose to retaliate," N.J.S.A. 2C:28-5(b), in order to establish that the

alleged "threat of force" constitutes an unlawful act, the State will need to

prove that defendant acted with more than simply a "purpose to retaliate." For

example, to render the posts unlawful as a terroristic threat, the State would

have to prove defendant intended to terrorize or recklessly disregarded the risk

of causing terror, N.J.S.A. 2C:12-3(a).7 Similarly, to claim the posts were

unlawful harassment, which includes threatening to strike, kick, shove or other

offensive touching, the State would need to prove a "purpose to harass,"

N.J.S.A. 2C:33-4(b).    By contrast, if the threat of force were made only

negligently, without the intent (or reckless disregard) that the witness take it

seriously, then it would not be an unlawful act under either of those two

provisions.

      Moreover, to establish defendant engaged in an unlawful act, the State

must show her posts are not protected by the First Amendment. "Speech . . .

cannot be transformed into criminal conduct merely because it annoys,

disturbs, or arouses contempt."      Burkert, 231 N.J. at 281.      "The First

Amendment protects offensive discourse, hateful ideas, and crude language


7
  As discussed below, the Constitution may require a higher mens rea than
recklessness.


                                                                       A-0152-18T6
                                      15
because freedom of expression needs breathing room and in the long run leads

to a more enlightened society." Ibid. The State may not criminalize a person's

speech simply because it espouses ideas with which the State disagrees. See

ibid. The First Amendment protects the right to coerce action by "'threats' of

vilification or social ostracism." NAACP v. Claiborne Hardware Co., 458 U.S.

886, 926 (1982).

      "[C]ontent-based restrictions on speech have been permitted, as a

general matter, only when confined to the few 'historic and traditional

categories [of expression] long familiar to the bar.'" United States v. Alvarez,

567 U.S. 709, 717 (2012) (quoting United States v. Stevens, 559 U.S. 460, 468

(2010)). Included among these are "true threats" and "advocacy intended, and

likely, to incite imminent lawless action." Id. at 718; see also Watts v. United

States, 394 U.S. 705, 708 (1969) (stating the First Amendment does not protect

"true threats"); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (stating the

First Amendment does not protect speech to incite imminent acts of violence);

Burkert, 231 N.J. at 281 (stating that the First Amendment does not bar

criminalizing "speech that physically threatens or terrorizes another, or speech

that is intended to incite imminent unlawful conduct").

      A "true threat" includes "statements where the speaker means to

communicate a serious expression of an intent to commit an act of unlawful



                                                                        A-0152-18T6
                                      16
violence to a particular individual or group of individuals." Virginia v. Black,

538 U.S. 343, 359 (2003). The First Amendment does not cover true threats so

as "to protect[] individuals from the fear of violence and from the disruption

that fear engenders, in addition to protecting people from the possibility that

the threatened violence will occur." Id. at 360. By contrast, mere hyperbole,

even "vehement, caustic, . . . unpleasantly sharp attacks" and "vituperative,

abusive, and inexact" speech, are protected. Watts, 394 U.S. at 708.

      "Alleged threats should be considered in light of their entire factual

context, including the surrounding events and reaction of the listeners."

Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coalition of Life

Activists, 290 F.3d 1058, 1075 (9th Cir. 2002) (en banc) (quoting United

States v. Orazco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)) (affirming

finding that anti-abortion activists engaged in true threats against physicians

who performed abortions); see also United States v. Kelner, 534 F.2d 1020,

1026 (2d Cir. 1975) (stating that true threats are "only those which according

to their language and context convey[] a gravity of purpose and likelihood of

execution"); United States v. Carmichael, 326 F. Supp. 2d 1267, 1281 (M.D.

Ala. 2004) (stating the court must consider the context in which the speech is

delivered).




                                                                       A-0152-18T6
                                      17
      Contextual factors include the language itself, and whether it is stated

conditionally. Ibid. A court must also consider:

             the reaction of the recipient of the threat and of other
             listeners; whether the threat was conditional; whether
             the threat was communicated directly to its victim;
             whether the maker of the threat had made similar
             statements to the victim in the past; and whether the
             victim had reason to believe that the maker of the
             threat had a propensity to engage in violence.

             [United States v. Dinwiddie, 76 F.3d 913, 925 (8th
             Cir. 1996) (citations omitted) (affirming conviction
             under Freedom of Access to Clinic Entrances Act of
             1994 based on true threat).]

      We would add that the forum in which the speech is delivered may also

provide context.    In particular, use of the internet or social media may,

depending on the circumstances, amplify the threatening nature of speech or

attenuate it.8


8
  Some argue that use of the internet would tend to place speech outside the
scope of a true threat. See Planned Parenthood, 290 F.3d at 1099 (Kozinsky,
J., dissenting) (arguing posts threatening abortion providers were not true
threats because, among other reasons, their public online nature made them
more like "public discourse" and less like "a face-to-face confrontation, a
telephone call, [or] a dead fish wrapped in newspaper"); Raymond T. Nimmer,
2 Information Law § 10:78 (West, updated 2018) (arguing threats may have
less "immediacy" on the internet). On the other hand, the breadth of the
internet audience may increase the likelihood that particular speech will
provoke an actor somewhere to violence, thereby causing a reasonable person
to fear such a result. See Scott Hammack, The Internet Loophole: Why
Threatening Speech On-line Requires a Modification of the Courts' Approach
to True Threats and Incitement, 36 Colum. J. L. & Soc. Probs. 65, 81 (2002)
                                                                 (continued)

                                                                        A-0152-18T6
                                       18
      Courts disagree about whether an element of a true threat is the speaker's

subjective intent to express a serious plan to harm, or an objective intent based

on how a reasonable person would understand the statement. In United States

v. Bagdasarian, 652 F.3d 1113, 1117-18 (9th Cir. 2011), the court read Black

to require a subjective intent – whether "the speaker subjectively intend[ed]

the speech as a threat" – as a matter of constitutional law, even if some statutes

require, as an additional element, an objective standard addressing the

reasonable perception of others. See also United States v. Heineman, 767 F.3d

970, 975, 979 (10th Cir. 2014) (holding that the First Amendment requires

proof that the defendant subjectively "intended the recipient to feel threatened"

to sustain a conviction under 18 U.S.C. § 875(c)).

      On the other hand, some courts have focused on the listener's objectively

reasonable reaction, and have required only a speaker's subjective intent to

communicate, as opposed to threaten.        The Eleventh Circuit held, "[T]he

inquiry is whether . . . the defendant intentionally made the statements under

such circumstances that a reasonable person would construe them as a serious

expression of an intention to inflict bodily harm." United States v. Alaboud,

(continued)
(arguing that the internet's "ability to reach widespread audiences, rapid
exchange of information, low cost of use, veil of anonymity, and constantly
changing audience make threats posted on the Internet seem more dangerous
than the same threats made in an off-line context").


                                                                         A-0152-18T6
                                       19
347 F.3d 1293, 1296-97 (11th Cir. 2003) (quoting United States v. Callahan,

702 F.2d 964, 965 (11th Cir. 1983)), overruled on other grounds by United

States v. Martinez, 800 F.3d 1293 (11th Cir. 2015) (per curiam). Similarly, the

Fourth Circuit held, "[W]hile the speaker need only intend to communicate a

statement, whether the statement amounts to a true threat is determined by the

understanding of a reasonable recipient familiar with the context that the

statement is a 'serious expression of an intent to do harm' to the recipient."

United States v. White, 670 F.3d 498, 509 (4th Cir. 2012) (quoting Black, 538

U.S. at 359), overruled on other grounds by Elonis v. United States, 575 U.S.

___, 135 S. Ct. 2001 (2015).

      We are persuaded that both tests should apply. Consistent with Black, a

defendant must intend to do harm by conveying a threat that would be

believed; and the threat must be one that a reasonable listener would

understand as real. The court in United States v. Martinez, 736 F.3d 981, 992

(11th Cir. 2013), asserted it would be a rare case in which "speech [is]

communicated by a speaker who 'acts with innocent intent, but negligently

conveys a message that others [reasonably] find to be threatening.'" But, given

the prevalence of extreme, impulsive, and unfiltered commentary on social

media, we think it not so uncommon that a speaker may thoughtlessly post rash

or hyperbolic statements, causing others to reasonably fear for their safety.



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See Scott Hammack, The Internet Loophole: Why Threatening Speech On-line

Requires a Modification of the Courts' Approach to True Threats and

Incitement, 36 Colum. J. L. & Soc. Probs. 65, 97-98 (2002) (advocating a test

addressing both the subjective intent of the speaker to cause fear and the

objectively reasonable reaction of a listener to perceive a serious threat). 9

      A public statement expressly urging unspecified others to violence may

be criminalized if it conveys the speaker's own serious intent to inflict harm –

otherwise, it is not a threat. In White, 670 F.3d at 505, the court held that

posts on a white supremacist website urging the assassination of a civil rights

lawyer, whose home address it also provided, were not true threats. While

"neither direct communication nor personal or group involvement in the threat"

is necessary for a threat to be "true," language "clearly directed to others in the

form of advocacy" would not be reasonably interpreted as "serious expressions

of intent to commit harm." Id. at 513-14 (citations omitted). A true threat is a

"serious expression of intent" to harm, not merely the expression of a "serious

desire" that harm should befall someone. Id. at 514. In Bagdasarian, 652 F.3d

at 1122, the court held that online posts declaring then-presidential candidate


9
  The author finds support in the trial court's opinion in Planned Parenthood of
Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 41 F. Supp. 2d
1130, 1155 n.1 (D. Or. 1999), aff'd in part and rev'd in part, 290 F.3d 1058
(9th Cir. 2002) (en banc).


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Barack Obama “will have a 50 cal in the head soon” and calling for someone

to shoot him did not constitute a true threat. The posts did not express an

intent to do anything, only a prediction that something would occur and a call

for others to act. Ibid.

      A reference to the actions of others may constitute a true threat if it is

sufficiently detailed and precise, or if the speaker has rallied followers to

commit violence by using similar language in the past, so as to imply the

person posting will himself either act on the threat or direct others in his

control to do so. Compare Claiborne Hardware Co., 458 U.S. at 929 (holding

Charles Evers's promise to "break [the] damn neck" of African-Americans

patronizing boycotted stores was not a true threat because "there [wa]s no

evidence – apart from the speeches themselves – that Evers authorized,

ratified, or directly threatened acts of violence," rendering his threat mere

advocacy of violence, not expressing Evers's own intent to act), with United

States v. Turner, 720 F.3d 411, 413 (2d Cir. 2013) (finding a gun-rights

activist conveyed a true threat when he stated on-line that certain judges failed

to "take the hint" from an activist's murder of another judge's family); United

States v. Wheeler, 776 F.3d 736, 746 (10th Cir. 2015) (holding a post urging

"religious followers" to kill certain identified police officers was a true threat




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because a reasonable person would interpret it as expressing an intent to direct

others in the speaker's control to commit violence).

      Besides true threats, the First Amendment does not protect speech that

"is directed to inciting or producing imminent lawless action and is likely to

incite or produce such action." Brandenburg, 395 U.S. at 447. In contrast to a

true threat, which conveys the speaker's own intent either to perpetrate

violence or to use his authority to direct others to do so, inciting words exhort

others to do violence without signaling the speaker's intent to act.           See

Wheeler, 776 F.3d at 744-45 (noting that "the line between threats and

incitement, especially in cyberspace" may be blurred).          Because merely

advocating violence is protected, only immediate danger, coupled with the

speaker's intent to cause such danger, will remove inciting speech from the

First Amendment's protection. Brandenburg, 395 U.S. at 447.

      For example, a person may be convicted for urging protestors at an

angry demonstration to "get the cop, get the cop," inciting them to attack a

police officer who was attempting to arrest another protestor. State v. Hopson,

119 N.J. Super. 84, 85, 89 (App. Div. 1972).           However, absent such an

imminent response, exhorting others to violence is constitutionally protected.

Brandenburg, 395 U.S. at 448-49.




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      Where a call to others to act neither conveys a plan to act nor is likely to

produce imminent danger, it may not be criminalized, despite its unsettling

message.   In Carmichael, 326 F. Supp. 2d at 1290, the court rejected the

government's argument that a defendant's website presented both a true threat

and an incitement to violence. The defendant, charged with drug conspiracy

and money laundering offenses, identified various persons as "informants" and

"agents," included their photographs, and asked the public for information

about them.    Although the format of the website went through various

iterations, at one point, the website included the word "Wanted" in large block

red letters, below which appeared the words "Information on these Informants

and Agents." Id. at 1272. Eventually, the website included a proviso that the

website was not intended "to intimidate or harass any informants or agents, but

is simply an attempt to seek information." Ibid.

      Focusing on the website's plain language, the court denied the

government's request to compel the website's removal.                 The court

distinguished "wanted" posters in other cases that were found to be

unprotected, because Carmichael's website did not reference killing, execution

or blood, and included no epithets. Id. at 1281-82. Considering context, the

court noted that "the general history of informants being killed in drug

conspiracy cases" was not enough to convert the website itself into a true



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threat. Id. at 1285. The court also rejected the argument that the website

should be shut down for encouraging others to harm the witnesses or agents,

holding the website fell short of the stringent test under Brandenburg and

Claiborne. Id. at 1287-88.

      Applying these principles, we doubt that the present record could

support a conviction for retaliation, because the posts may be protected by the

First Amendment as mere spiteful venting – not true threats or incitement.

Nonetheless, at this stage the State need not prove defendant's guilt. As a

threshold showing to detain defendant, the State need only show probable

cause, that is, a "substantial chance of criminality," Pinkston, 233 N.J. at 509

(quoting Gates, 462 U.S. at 243 n.13). Given the proofs required to meet that

less demanding burden, we are constrained to affirm the trial court's

determination that there is probable cause to charge defendant with retaliation.

      There is a "substantial chance" or a "well-grounded suspicion" that

defendant intended the witness to believe that someone might respond to

defendant's posts by blowing off his glasses or otherwise assaulting him.

There is a history of retaliation or intimidation of witnesses against

participants in gangs and organized crime. Unlike in Carmichael, defendant

heaped epithets upon the witness and she also referred to an act of violence




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against him. She circulated her statements to an apparently broad audience.

All it would take is one person to be moved to action against the witness.

      These factors are sufficient to raise the charge of retaliation to the low

threshold of probable cause. While the State failed to identify the statute

rendering defendant's alleged "threat of force" "an unlawful act," the record

supports a finding of probable cause that defendant intended either to terrorize,

N.J.S.A. 2C:12-3(a), or to harass, N.J.S.A. 2C:33-4(b). The same evidence

also shows there is a "substantial chance" the posts are true threats and

therefore unprotected.

      However, the weight of the evidence of a true threat or incitement is

weak. Defendant did not explicitly threaten to harm or exert force against the

witness. Rather, she expressed disdain for the witness because he was a "rat"

who, she contended, lied for "chump change." Her expressed goal was to

socially ostracize the witness by warning people to steer clear of him.

Defendant may not have hoped someone would literally "blow" the witness's

glasses off his face, any more than someone hopes another person will literally

rot in hell. Moreover, expressing a sincere desire by itself is not enough to

constitute a true threat.

      The State will ultimately need to present more than defendant's

statements to persuade a jury beyond a reasonable doubt that defendant's



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statements were not mere hyperbole. The State must show that a reasonable

person would believe that cohorts or allies of defendant would understand her

expression of hope as a request or command and would act on it; and that

defendant intended that reaction.

      Context matters.    The State has provided virtually no context for

defendant's Facebook statements. Instead, it relies entirely on the statements

themselves and the allegation that Brown, against whom the witness testified,

was involved in gangs. The record lacks any evidence of a history of violence

by defendant; the relationship if any between her and the witness, Brown, or

gangs; or the nature of the readership of defendant's Facebook page. There is

also no evidence concerning whether or not the witness's identity was publicly

known before the posts, or whether other testifying witnesses have been

victimized.

      While the State alleges defendant's statements are a "call to arms,"

advocacy of violence is protected speech unless it "is directed to inciting or

producing imminent lawless action and is likely to incite or produce such

action." Brandenburg, 395 U.S. at 447. But defendant expressed only the

"hope" that someone would blow the witness's glasses off his face; she did not

ask or exhort someone to do that. Even urging others to violence is shielded

unless the statement is designed and likely to produce immediate action.



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Tending to disprove such a design and likelihood is that law enforcement

learned of defendant's Facebook posts almost two months after they were

published, yet no one apparently had answered the alleged "call to arms."

      In sum, the State has not presented weighty evidence that defendant's

statements were true threats under Watts, or incitements to violence under

Brandenburg. On the other hand, the State has established probable cause to

charge defendant under N.J.S.A. 2C:38-5(b).

      Reversed and remanded for reconsideration.       The order of detention

remains in force and defendant shall not be released until so ordered by the

trial court. We do not retain jurisdiction.




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