                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      July 28, 2015
                                       PUBLISH                    Elisabeth A. Shumaker
                                                                      Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT


 UNITED STATES OF AMERICA,
              Plaintiff - Appellant/Cross-
              Appellee,
       v.                                            Nos. 13-3253 & 13-3266
 ANGEL DILLARD,
              Defendant - Appellee/Cross-
              Appellant.

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF KANSAS
                       (D.C. No. 6:11-CV-01098-JTM)


Thomas E. Chandler, Attorney, Department of Justice, Civil Rights Division, Appellate
Section (Jocelyn Samuels, Acting Assistant Attorney General; Diana K. Flynn and
Dennis J. Dimsey, Attorneys, Department of Justice, Civil Rights Division, Appellate
Section, with him on the briefs), Washington, D.C., for Plaintiff–Appellant/Cross-
Appellee.

Theresa Lynn Sidebotham of Telios Law, PLLC, Monument, Colorado (Donald A.
McKinney of McKinney Law Firm, Wichita, Kansas, with her on the briefs), for
Defendant–Appellee/Cross-Appellant.


Before McHUGH, McKAY, and BALDOCK, Circuit Judges.


McKAY, Circuit Judge.
       These cross-appeals arise out of a civil enforcement action brought by the United

States under the Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. §

248, which prohibits using force, threats of force, or physical obstruction to injure,

intimidate, or interfere with those seeking to obtain or provide reproductive health care

services. The government alleges Defendant Angel Dillard violated FACE by sending a

threatening letter to a doctor whose plans to open an abortion clinic in Wichita, Kansas,

had recently been made public.

       The district court denied Defendant’s motion to dismiss but subsequently granted

her motion for summary judgment, concluding that Defendant’s letter did not contain a

true threat because (1) it did not suggest unconditional, imminent, and likely violence and

(2) it predicted violence by third parties but did not suggest Defendant would herself

engage in violence against the doctor. The government appealed the district court’s grant

of summary judgment. Defendant then cross-appealed, arguing the district court should

have granted her earlier motion to dismiss both because the government lacked standing

to bring this action against her and because FACE is unconstitutional both facially and as

applied.

                                              I.

       In late 2010, Dr. Mila Means, a family practitioner in Wichita, confirmed public

reports that she intended to begin offering abortion services to the public. At that time, no

doctors were performing abortions in Wichita. The last doctor to do so, Dr. George

Tiller, had been shot to death in 2009 by an anti-abortion activist named Scott Roeder

                                             -2-
while attending church services. Dr. Tiller had been “a mentor and a very admired

colleague” of Dr. Means for several years before his death. (Appellant’s App. at 142.)

       On January 14, 2011, federal law enforcement officers held a meeting at Dr.

Means’ office “to brief her and her staff on security measures regarding abortion

extremism.” (Appellant’s Sealed App. at 265.) Among other things, they “talked about

the Summer of Mercy, the fire bombing of [Dr.] Tiller’s clinic . . . , the fact that [Dr.]

Tiller had been shot by Shelley Shannon in both arms, that [vandals had flooded Dr.

Tiller’s clinic by inserting a garden hose through a hole they cut in the roof], and

ultimately the murder of [Dr.] Tiller at church.” (Id.) They also discussed dealing with

bomb threats and watching for suspicious packages.

       On about January 15, 2011, Defendant Angel Dillard wrote a letter to Dr. Means

and mailed it to her office in an envelope bearing Defendant’s name and return address.

This letter states in full:

       Dr. Means,

               It has come to our attention that you are planning to do abortions at
       your Harry St. location. I am stunned that you would take your career in
       this direction. Fewer people than ever before are pro-abortion, quality
       physicians wouldn’t even consider associating themselves with it, and more
       Americans than ever before are unwilling to turn a blind eye to the killing
       of a baby when the ratio of adoption is 36 couples to 1 baby.

               Maybe you don’t realize the consequences of killing the innocent. If
       Tiller could speak from hell, he would tell you what a soulless existence
       you are purposefully considering, all in the name of greed. Thousands of
       people are already looking into your background, not just in Wichita, but
       from all over the U.S. They will know your habits and routines. They
       know where you shop, who your friends are, where you drive, where you

                                              -3-
      live. You will be checking under your car everyday—because maybe today
      is the day someone places an explosive under it. People will be picketing
      your home, your office. You will come under greater scrutiny than you’ve
      ever known, legally and professionally. Much worse than the disciplinary
      actions and ethical concerns that you’ve been facing. You will become a
      pariah—no physician will want to associate with you. You will be seen like
      all the other hacks that have stooped to doing abortions when they weren’t
      good enough to maintain a real practice. You will lose your legitimate
      clientele, as no one bringing a baby into this world wants to be in the same
      facility where you are also killing them. You will have trouble keeping
      staff who are willing to participate in innocent blood-shedding and won’t be
      able to keep the sanitary conditions necessary to maintain a healthy medical
      facility. You will end up having the same kind of rat-infested, dirty facility
      that they have in north-eastern Kansas. Anyone who partners with you will
      experience the same headaches. Not to mention the fact that you will be
      haunted by bloody, squirming, dismembered babies in your sleep. You
      can’t do what is morally reprehensible and enjoy peace of mind. The Bible
      says, “There are six things the Lord hates . . . hands that shed innocent
      blood, a heart that devises evil schemes, feet that are quick to rush into evil .
      . .” Proverbs 6:16-18. Abortion kills human life—it matters not if you kill
      it at 6 weeks or at 26 weeks, it’s still the unnatural, violent death of a human
      baby for the sake of convenience. You are doing what the Humane Society
      wouldn’t allow to happen to a pregnant dog or cat.

             I urge you to think very carefully about the choices you are making.
      There are 3 churches within 1 block of your practice, and many others who
      must take a stand. We will not let this abomination continue without doing
      everything we can to stop it. We pray you will either make the right choice
      and use your medical practice to heal instead of kill, or that God will bring
      judgment on you, the likes of which you cannot imagine. We don’t want
      you killing our children in our community. Good people are tired of this
      rampant evil, and will stand against you every step of the way. Do the
      world a favor and ABORT this stupid plan of yours. It’s not too late to
      change your mind.
                                                        Angel Dillard

(Appellant’s App. at 25.)

      Dr. Means’ office manager received the letter on January 19, 2011, and

immediately notified the Wichita police. The office manager and a local police officer

                                            -4-
showed the letter to Dr. Means. (Id. at 148.) A copy of the letter was also forwarded to

the FBI, and thereafter an FBI agent interviewed Defendant. The FBI did not take any of

the follow-up actions they would have taken had they determined Defendant to be a

threat. (See Appellant’s Sealed App. at 180.)

       Shortly after receiving the letter, Dr. Means’ staff found an Associated Press

article on the internet which discussed Defendant’s friendship with Scott Roeder, Dr.

Tiller’s murderer. This article apparently reported that Defendant had befriended Mr.

Roeder while he was in jail for the murder.1 The article indicated that Defendant admired

Mr. Roeder for following his convictions and being “the only one able to stop abortions in

Wichita.” (Appellant’s App. at 153.) The article further reported that Defendant “said

she had been questioned several times by the FBI, and she and her husband have no plans

to do anything of violence to anyone.” (Id. at 153-54.)

       Reading this news article did nothing to allay Dr. Means’ concerns. She believed

that Defendant’s admiration of Mr. Roeder suggested a likelihood that she too would go

“from protester to murderer,” and she remained very anxious that Defendant or her

associates would indeed place an explosive under her car as suggested by the letter. (Id.

at 154.) Dr. Means accordingly began taking additional security precautions, such as



       1
          Other evidence in the record indicates that Defendant was a minister at the local
jail and became acquainted with Mr. Roeder in this capacity. However, it is not clear that
this information appeared in the news article. Neither party included a copy of the news
article in the record on appeal, so our description of this article is based mainly on Dr.
Means’ testimony regarding the article’s contents.

                                            -5-
parking her car in sight of her office, taking her car to the mechanic, and installing door

alarms.

       In April 2011, the government brought this civil enforcement action against

Defendant, seeking fines as well preliminary and permanent injunctive relief. After a

hearing, the district court denied the government’s request for a preliminary injunction.

Defendant then filed a motion to dismiss in which she argued the government lacked

standing to bring this action and could not show a violation of FACE because the statute

only covers current abortion providers and Dr. Means was not providing abortions at the

time the letter was written. The district court denied the motion to dismiss, holding that

“the statute is properly read to apply to true threats directed at discouraging physicians

from completing training for the provision of abortion services.” (Id. at 338.)

       While discovery was ongoing, Dr. Means abandoned her plans to open an abortion

clinic due to recent changes in Kansas law. As a result, the protest activities against her

dropped off.

       After the parties completed discovery, Defendant filed a motion for summary

judgment. She argued that no reasonable person could view her letter as a threat because

it did not threaten imminent violence or convey a likelihood of execution, and she argued

any finding of a violation would therefore violate the First Amendment. Defendant also

argued that summary judgment was warranted because the government had presented “no

direct evidence to show . . . that she subjectively intended the letter to be a threat of

force.” (Appellant’s Sealed App. at 101.)

                                              -6-
       The district court agreed that the letter did not convey a true threat because (1) the

alleged threat of a car bomb was not “imminent, likely and unconditional”; and (2) “the

letter says nothing about what [Defendant] will do, only what other entities might do.”

(Appellant’s App. at 365-66.) The court granted summary judgment to Defendant on this

ground, and accordingly did not resolve Defendant’s alternative argument that the

government had failed to show a subjective intent to threaten.

       The government appeals the district court’s summary judgment decision, and

Defendant cross-appeals the district court’s denial of her earlier motion to dismiss. The

parties have also filed documents discussing whether the parties’ briefs and portions of

the appellate appendix should be sealed. We will address the government’s appeal first,

then Defendant’s cross-appeal, and finally matters relating to the sealing of the briefs and

appendix.

                                             II.

       We review the district court’s summary judgment ruling de novo, applying the

same legal standards as the district court. Doe v. City of Albuquerque, 667 F.3d 1111,

1122 (10th Cir. 2012). “Summary judgment should be granted if there is no genuine

issue as to any material fact and the movant is entitled to judgment as a matter of law.”

Id. “When applying this standard, we view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.” Id. (internal quotation

marks omitted).

       Under FACE, an individual may be subject to fines or other penalties if he or she

                                             -7-
“by force or threat of force . . . intentionally injures, intimidates, or interferes with . . . any

person because that person is or has been, or in order to intimidate such person or any

other person or any class of persons from, obtaining or providing reproductive health

services.” 18 U.S.C. § 248(a)(1). The statute defines “intimidate” to mean “to place a

person in reasonable apprehension of bodily harm to him- or herself or to another.” Id.

§ 248(e)(3). The statute specifically provides that it shall not be construed “to prohibit

any expressive conduct . . . protected from legal prohibition by the First Amendment to

the Constitution.” Id. § 248(d)(1).

       FACE does not define the phrase “threat of force.” However, since FACE must be

interpreted consistently with the First Amendment, we agree with the Ninth Circuit and

with the district court below that this term should be interpreted consistently with well-

settled law defining “true threats” which fall outside of the First Amendment’s

protections. See Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of

Life Activists, 290 F.3d 1058, 1077 (9th Cir. 2002) (en banc). Thus, if Defendant’s letter

can be construed to contain a true threat for First Amendment purposes, it will also be

construed to contain a “threat of force” in violation of FACE.

       The Supreme Court has defined “true threats” to be “statements 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.” Virginia v. Black, 538 U.S.

343, 359 (2003). To fall outside of the First Amendment’s protections, a threat must

“‘according to its language and context convey[] a gravity of purpose and likelihood of

                                               -8-
execution so as to constitute speech beyond the pale of protected vehement, caustic,

unpleasantly sharp attacks on government and public officials.’” United States v. Crews,

781 F.2d 826, 832 (10th Cir. 1986) (internal quotation marks, brackets, and ellipses

omitted) (quoting United States v. Kelner, 534 F.2d 1020, 1026 (2d Cir. 1975)). While a

true threat must include “a serious expression of an intent to commit an act of unlawful

violence,” Black, 538 U.S. at 359, the speaker need not intend to actually act upon the

threat. As we have explained:

       It is not necessary to show that defendant intended to carry out the threat,
       nor is it necessary to prove he had the apparent ability to carry out the
       threat. The question is whether those who hear or read the threat
       reasonably consider that an actual threat has been made. It is the making
       of the threat and not the intention to carry out the threat that violates the
       law.

United States v. Viefhaus, 168 F.3d 392, 395-96 (10th Cir. 1999).

       We apply an objective test to determine whether the speaker made a true threat,

“focusing on whether a reasonable person would find that a threat existed.” United States

v. Magleby, 241 F.3d 1306, 1311 (10th Cir. 2001). This objective test requires “a fact-

intensive inquiry, in which the language, the context in which the statements are made, as

well as the recipients’ responses are all relevant.” Nielander v. Bd. of Cnty. Comm’rs of

Cnty. of Republic, Kan., 582 F.3d 1155, 1167-68 (10th Cir. 2009).

       Because this test involves a fact-intensive inquiry, we have consistently held that

“whether a defendant’s statement is a true threat or mere political speech is a question for

the jury.” Viefhaus, 168 F.3d at 397. “If there is no question that a defendant’s speech is


                                             -9-
protected by the First Amendment, the court may dismiss the charge as a matter of law.”

Id. “But, absent an unusual set of facts, the question whether statements amount to true

threats is a question generally best left to a jury.” United States v. Wheeler, 776 F.3d 736,

742 (10th Cir. 2015) (internal quotation marks omitted).

       The district court held that Defendant’s letter did not contain a true threat because

(1) it did not convey an unconditional, imminent, and likely threat of violence, and (2) it

did not suggest that Defendant herself would engage in violence against Dr. Means. We

first address the district court’s conclusion that a true threat must convey an unconditional

and imminent threat of violence, then turn to the district court’s holding that the letter did

not suggest violence by Defendant herself, and finally consider de novo whether a jury

could reasonably find a true threat under all of the circumstances of this case.

       The district court concluded that Defendant’s letter did not contain a true threat

because it was conditional, suggesting a bomb might be placed under her car only if she

did not reconsider her plans to offer abortion services. However, our cases make clear

that a statement may constitute a true threat even if it is conditional. In Crews, we upheld

a conviction based on the statement that “[i]f Reagan came to Sheridan, I would shoot

him,’” 781 F.2d at 829, expressly rejecting the defendant’s argument “that his statement

was not a ‘true threat’ because it was contingent on President Reagan coming to Sheridan,

Wyoming.” Id. at 832 n.3. Indeed, when a threat is used to intimidate or dissuade an

individual from taking a particular action, the threat will often be contingent, with the

threatener suggesting that violence will only be used if the listener fails to comply with

                                             -10-
the threatener’s demands. Such a contingent threat may still violate FACE. As the

Seventh Circuit has explained, “Most threats are conditional; they are designed to

accomplish something; the threatener hopes that they will accomplish it, so that he won’t

have to carry out the threats. They are threats nonetheless.” United States v. Schneider,

910 F.2d 1569, 1570 (7th Cir. 1990). The district court thus erred in holding that

Defendant’s letter did not contain a true threat because it suggested violence only if Dr.

Means followed through with her plans to offer abortion services in Wichita.

       We likewise reject the district court’s conclusion that Defendant’s letter did not

contain a true threat because the suggested violence was not imminent, but would

potentially occur only at some point in the future after Dr. Means began offering abortion

services. A threat of violence does not need to be imminent so long as it “convey[s] a

gravity of purpose and likelihood of execution.” Crews, 781 F.2d at 832. The district

court concluded that a true threat must be imminent based mainly on language from a

Second Circuit case which stated that “a district court must ask whether the threat on its

face and in the circumstances in which it is made is so unequivocal, unconditional,

immediate and specific as to the person threatened, as to convey a gravity of purpose and

imminent prospect of execution.” New York ex rel. Spitzer v. Operation Rescue Nat’l,

273 F.3d 184, 196 (2d Cir. 2001) (internal quotation marks omitted). In recent cases,

however, the Second Circuit has described this language as “dicta” and has rejected the

argument that all threats must satisfy all of these conditions in order to fall outside of the

First Amendment protections. United States v. Turner, 720 F.3d 411, 424 (2d Cir. 2013).

                                             -11-
Imminence may contribute to a finding that a communication constitutes a true threat, but

it is not a required element. See id. At the summary judgment stage, the pertinent

question for the court to determine is simply whether a jury could reasonably find that

“the statement itself [is] one that a reasonable person in the circumstances would

understand as a declaration of intention, purpose, design, goal, or determination to inflict

bodily injury on another.” United States v. Heineman, 767 F.3d 970, 972 (10th Cir. 2014)

(internal quotation marks and brackets omitted).

       The district court also concluded that Defendant’s letter could not be construed as

a true threat because she only stated that an unidentified “someone” might place

explosives under Dr. Means’ car, not that she personally intended to commit an act of

violence against Dr. Means. However, a direct statement of personal intent is not

necessary for a jury to find that a communication conveys a threat of injury which will be

“brought about—rather than merely predicted—by the defendant,” United States v.

Cassel, 408 F.3d 622, 636-37 (9th Cir. 2005). A jury may be more likely to find a true

threat where a communication unequivocally and directly expresses the speaker’s intent

to personally commit an act of violence against the recipient, but it can still reasonably

find a true threat even where the communication is more ambiguous. For instance, in

Viefhaus, 168 F.3d at 394-96, we held that a reasonable jury could find a true threat

where the defendant recorded a message stating that “a letter from a high ranking

revolutionary commander has been written and received demanding that action be taken

against the government by all white warriors by December 15th and if this action is not

                                            -12-
taken, bombs will be activated in 15 pre-selected major U.S. cities.” Likewise, in United

States v. Alaboud, 347 F.3d 1293 (11th Cir. 2003), the Eleventh Circuit upheld a

conviction where the defendant “never specifically asserted that he would personally

carry out the promised vengeance” but left messages which “entailed graphic promises of

violence that would fall upon” the victims, id. at 1297, such as “‘one day soon one will

come and liberate America and this planet from the grip of Jews, like yourself, . . . but the

rest should be heads put in a vice,’” id. at 1295. See also, e.g., United States v. McMillan,

53 F. Supp. 2d 895, 898 (S.D. Miss. 1999) (holding that the government had shown a

violation of FACE where the defendant repeatedly shouted “where is a pipebomber when

you need one” at an abortion doctor).

       A defendant cannot escape potential liability simply by using the passive voice or

couching a threat in terms of “someone” committing an act of violence, so long as a

reasonable recipient could conclude, based on the language of the communication and the

context in which it is delivered, that this was in fact a veiled threat of violence by the

defendant or by someone acting under her direction or in conspiracy with her. As the

Second Circuit has warned, “rigid adherence to the literal meaning of a communication

without regard to its reasonable connotations . . . would render the statute powerless

against the ingenuity of threateners who can instill in the victim’s mind as clear an

apprehension of impending injury by an implied menace as by a literal threat.” Turner,

720 F.3d at 422 (internal quotation marks omitted).

       Based on our de novo review of the record, we are persuaded a jury could

                                             -13-
reasonably find Defendant’s letter to convey a true threat of violence by her or someone

acting in association with her. In determining whether a communication conveys a true

threat, “context is critical . . . and history can give meaning to the [message].” Planned

Parenthood, 290 F.3d at 1078. The context in this case includes Wichita’s past history of

violence against abortion providers, the culmination of this violence in Dr. Tiller’s

murder less than two years before Defendant mailed her letter, Defendant’s publicized

friendship with Dr. Tiller’s killer, and her reported admiration of his convictions. When

viewed in this context, the letter’s reference to someone placing an explosive under Dr.

Means’ car may reasonably be taken as a serious and likely threat of injury, and

Defendant’s discussion of what Dr. Tiller might say if he “could speak from hell”—which

inherently carries an implicit allusion to his death—can reasonably be read to provide an

additional threatening undertone to the letter. We further conclude that a jury could

reasonably find that an objective reader in Dr. Means’ position would view the letter’s

description of “someone” placing an explosive under her car as a veiled threat that

Defendant or a co-conspirator would carry out this act. Of course, the jury in this case

might well agree with Defendant that her letter conveys, at most, a prediction of violence

by third parties unknown to and unaffiliated with Defendant. However, the opposite

conclusion is also reasonable, and this question must therefore be left for the jury to

decide.

       Defendant argues the government has “improperly attempt[ed] to ‘link’ [her] by

innuendo with the Scott Roeder–George Tiller murder,” suggesting that she is guilty by

                                            -14-
association. (Appellee’s Br. at 39.) She argues that “[i]t is inflammatory and

impermissible to equate [Defendant] with Roeder.” (Id.) She then cites to a Ninth Circuit

case discussing the problem that “arises when the statements [at issue] not only fail to

threaten violence by the defendants, but fail to mention future violence at all.” Planned

Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 244 F.3d 1007,

1018 (9th Cir. 2001), aff’d in part, vacated and remanded in part, 290 F.3d 1058 (9th Cir.

2002). In this situation, the Ninth Circuit held, context should not be stretched to read a

violent intent into a statement that includes no mention of violence. If the jury could find

a non-violent statement to convey a threat of violence based simply on the violent actions

of others, this “could have a highly chilling effect on public debate on any cause where

somebody, somewhere has committed a violent act in connection with that cause.” Id.

       However, the case before us does not involve a communication that “fail[ed] to

mention future violence at all,” id., and the government is not arguing that a nonviolent

statement should be infused with a violent meaning just because another abortion

opponent has committed a violent act. Rather, the government argues that a jury could

reasonably find Defendant’s own discussion of the possible bombing of Dr. Mean’s car to

convey a true threat of violence, coming as it did in the context of Wichita’s violent past

and Defendant’s publicized friendship with, and comments about, the man who had

murdered the last doctor to provide abortions in that city. The government does not argue

that Defendant must be guilty because she associated with Mr. Roeder; rather, the

government contends that reports of her association with Mr. Roeder are part of the

                                            -15-
context that would have an impact on a reasonable recipient’s reaction to her letter. In

light of this context, a reasonable jury could find that the letter conveyed a true threat of

violence. The district court therefore erred in granting summary judgment in favor of

Defendant on this ground.

       Defendant argues we can affirm the district court’s ruling on the alternative ground

that the government has presented no evidence she subjectively intended to threaten Dr.

Means. The parties agree that FACE includes a subjective intent element: a defendant is

only liable if she “intentionally” injured, intimidated, or interfered by force or threat of

force with someone seeking to obtain or provide reproductive health services. 18 U.S.C.

§ 248(a)(1). Defendant contends she is entitled to summary judgment on this ground

because the only evidence of her subjective intent is her own testimony and the

statements she made to law enforcement officers and newspaper reporters that she does

not approve of violence and had no intent to threaten Dr. Means or anyone else.

       We find this argument unpersuasive. “Frequently the most probative evidence of

intent will be objective evidence of what actually happened rather than evidence

describing the subjective state of mind of the actor. For normally the actor is presumed to

have intended the natural consequences of his deeds.” Washington v. Davis, 426 U.S.

229, 253 (1976) (Stevens, J., concurring); see also Rankin v. Farmers Elevator Mut. Ins.

Co., 393 F.2d 718, 720 (10th Cir. 1968) (“Persons are presumed to intend the natural and

probable consequences of their acts.”). In this case, the government has presented

evidence from which a jury could reasonably find that Defendant intentionally mailed Dr.

                                             -16-
Means a letter which contains a threat of violence and therefore that she subjectively

intended the natural consequence of this act—intimidating Dr. Means by a threat of force.

       The government is not required to present any additional evidence of subjective

intent to withstand summary judgment. Holding otherwise would significantly hamper

the government’s ability to prove a violation in any case involving a subjective intent

element, since the government’s evidence of subjective intent will often be limited to only

the reasonable inferences that can be drawn from objective evidence of what actually

occurred. Taking all of the evidence in the light most favorable to the government in this

case, a jury could reasonably infer that Defendant intended to threaten Dr. Means when

she intentionally sent her this letter. We accordingly conclude that Defendant is not

entitled to summary judgment on this ground.

       Finally, Defendant argues she is entitled to summary judgment on the additional

alternative ground that the government’s evidence fails to satisfy FACE’s motive

element. FACE is violated when an individual uses force or threats of force to injure,

intimidate or interfere with someone “because that person is or has been, or in order to

intimidate such person or any other person or any class of persons from, obtaining or

providing reproductive health services.” 18 U.S.C. § 248(a)(1). Defendant contends this

motive element is only satisfied if the defendant was motivated by the actual or imminent

provision of reproductive health services, not by the contemplated future provision of

such services.

       Defendant provides no support for this argument, and we have found none.

                                           -17-
FACE’s motive element is satisfied if the defendant uses threats “in order to intimidate

[any] person . . . from . . . providing reproductive health services,” id., and nothing in the

statute suggests it must be limited to current or imminent health services. The

government has presented evidence from which a reasonable jury could find that

Defendant wrote a letter to Dr. Means to do exactly what the text of the statute

prohibits—intimidate her from providing abortion services. This satisfies the statutory

motive requirement, and we accordingly deny Defendant’s request to affirm the district

court’s summary judgment decision on this alternative ground.

       A reasonable jury could find that Defendant’s letter conveys a true threat, that she

subjectively intended to threaten Dr. Means, and that she wrote to Dr. Means in order to

intimidate her from providing reproductive health services. We therefore reverse the

district court’s grant of summary judgment in favor of Defendant and remand for further

proceedings in accordance with this opinion.2

                                             III.

       We turn now to Defendant’s cross-appeal of the district court’s denial of her

motion to dismiss the action, reviewing the district court’s decision de novo. See Sutton

v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). Defendant


       2
        We note that Defendant filed a separate motion for partial summary judgment on
the government’s request for a permanent injunction. The district court denied this
motion as moot but stated “that in light of the evidence before it, [Defendant’s] motion
would appear to have substantial merit.” (Id. at 368.) We agree with the district court’s
assessment of the merits of this motion. As it is no longer moot, the court on remand may
wish to consider whether this motion should now be granted.

                                             -18-
argues the action should have been dismissed because (1) the government lacked

standing; (2) the First Amendment bars this action; (3) FACE violates the Commerce

Clause both facially and as applied; and (4) the Religious Freedom Restoration Act

prevents this application of FACE.

       Defendant argues the district court should have dismissed the action for lack of

standing because: (1) the government’s standing to bring this complaint is derivative of

Dr. Means’ standing, if any; (2) Dr. Means was not an abortion provider at the time the

letter was sent; and (3) the statute only provides standing to current abortion providers or

doctors seeking to provide reproductive health services in a facility that already provides

such services. This argument is fatally flawed because the government’s standing to

bring a complaint under FACE is not derivative of the victim’s. FACE provides: “If the

Attorney General of the United States has reasonable cause to believe that any person or

group of persons is being, or has been, or may be injured by conduct constituting a

violation of this section, the Attorney General may commence a civil action in any

appropriate United States District Court.” 18 U.S.C. § 248(c)(2)(A). Thus, the

government has standing to bring a FACE enforcement action so long as it has reasonable

cause to believe that someone “is, has been, or may be injured” by conduct proscribed by

the statute. Contrary to Defendant’s arguments, this standing is not dependent on whether

the injured person could himself bring an action under § 248(c)(1). In this case, the

government had reasonable cause to believe Dr. Means had been injured by conduct

constituting a violation of FACE; thus, the district court correctly held that the

                                             -19-
government had standing to bring this action. Because we affirm on this ground, we need

not consider Defendant’s other arguments relating to Dr. Mean’s standing under the

statute.

        Second, Defendant argues the district court should have dismissed this case

because it violates the First Amendment as applied. However, as the district court

correctly held, the definition of a “threat” under FACE is coterminous with the definition

of a “true threat” under the First Amendment; thus, Defendant will not be convicted of

violating FACE unless her letter contained a threat that fell outside the First

Amendment’s protections. As explained above, we conclude that a reasonable jury could

find that her letter contained such a threat. We therefore reject Defendant’s First

Amendment argument.

        Next, Defendant argues that FACE violates the Commerce Clause both facially

and as applied. Defendant concedes that she did not raise a Commerce Clause argument

in the proceedings below, but she argues we should nevertheless consider these

arguments on appeal because they implicate questions of our jurisdiction. She argues the

government’s authorization to bring this suit comes from FACE, so if FACE is an

unconstitutional statute, the government lacked standing to file this action. She therefore

contends we must resolve her constitutional challenges to FACE in order to determine

whether the government had standing and thus whether we have jurisdiction over this

case.

        We do not find this argument persuasive. “Standing is determined as of the time

                                            -20-
the action is brought,” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005),

and the government had standing to bring this action under a statute which will be

presumed constitutional unless and until the contrary is proven, Heller v. Doe, 509 U.S.

312, 320 (1993). We are not persuaded that a pending challenge to the constitutionality

of a statute has a retroactive effect on the government’s standing to initiate an action

under this statute, and we accordingly conclude that Defendant’s challenges to the

constitutionality of FACE do not create an issue of Article III standing or otherwise give

rise to a nonwaivable jurisdictional issue. We will therefore follow our general rule

against considering arguments raised for the first time on appeal. See MacArthur v. San

Juan Cnty., 309 F.3d 1216, 1225 (10th Cir. 2002).

       Finally, Defendant argues the district court should have dismissed this case under

the Religious Freedom Restoration Act. As with Defendant’s Commerce Clause

arguments, this argument was not raised below, and we will not consider it for the first

time on appeal.3

       We accordingly affirm the district court’s denial of Defendant’s motion to dismiss.

                                             IV.

       Before the court are two pending motions concerning whether to seal portions of



       3
         In the proceedings below, Defendant argued the government violated her RFRA
rights by seeking an injunction that would effectively prevent her from attending her
church, which was located within 250 feet of Dr. Mean’s office. However, she did not
raise the argument she now seeks to raise on appeal—that RFRA bars any punishment
based on her religious expression of her views about abortion to Dr. Means.

                                            -21-
the appellate appendix and the parties’ briefs on appeal. For the reasons discussed below,

we direct the parties to re-file unsealed versions of the appendices with selected pages

redacted. Moreover, we order that the parties’ appellate briefing be unsealed.

       The government filed two volumes of its appellate appendix under seal. The

volumes contain documents sealed by the district court pursuant to two orders: a Privacy

Act protective order (the Privacy Act Order) and an order designating certain documents

as privileged (the Privilege Order). This court issued a sua sponte order to show cause

why the volumes should remain sealed. In response to our order, the parties identified

three distinct categories of documents they wish to maintain under seal. First, the

government argues portions of Dr. Means’ deposition testimony should remain under seal

because they reference Dr. Means’ personal medical history. Second, Defendant argues

the documents originally sealed pursuant to the district court’s Privacy Act Order should

remain under seal. Third, Defendant asserts documents sealed under the Privilege Order

fall within the clergy–penitent privilege and should remain under seal. We address each

in turn.

       “Courts have long recognized a common-law right of access to judicial records.”

Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). “It is beyond question that this

[c]ourt has discretionary power to control and seal, if necessary, records and files in its

possession.” Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980).

“In exercising this discretion we weigh the interests of the public, which are

presumptively paramount, against those advanced by the parties.” Id. “The party seeking

                                             -22-
to overcome the presumption of public access to the documents bears the burden of

showing some significant interest that outweighs the presumption.” Helm v. Kansas, 656

F.3d 1277, 1292 (10th Cir. 2011) (internal quotation marks omitted).

       First, the government argues portions of Dr. Means’s deposition should be subject

to a protective order because they contain “highly personal and private medical

information.” (Appellant’s Resp. to Order to Show Cause at 5.) We have previously

recognized that the privacy interest inherent in personal medical information can

overcome the presumption of public access. See Eugene S. v. Horizon Blue Cross Blue

Shield of N.J., 663 F.3d 1124, 1135-36 (10th Cir. 2011) (approving the filing under seal

of files containing private medical information); see also Russell v. Lanier, 404 F. App’x

288, 289 n.2 (10th Cir. 2010) (recognizing the “sensitive nature” of medical information

and granting leave to file appendix under seal). Having reviewed the pages of Dr.

Means’s deposition identified by the government, we agree they contain the type of

sensitive medical information that should remain under seal. Accordingly, pages 28–31,

117–18, 148–51, 226–27, 231–34, 237, 346, and 446 should be redacted upon refiling of

the appendices.

       Second, Defendant argues documents sealed pursuant to the district court’s

Privacy Act Order should remain under seal. (Appellee’s Resp. to Order to Show Cause

at 4.) The Privacy Act, 5 U.S.C. § 552a(b), provides that “[n]o agency shall disclose any

record which is contained in a system of records by any means of communication to any

person, or to another agency, except pursuant to a written request by, or with the prior

                                            -23-
written consent of, the individual to whom the record pertains.” The government

originally opposed disclosure of certain documents during discovery on the grounds that

such disclosure would violate the Privacy Act. (Privacy Act Order at 1.) It now argues

none of the documents contained in the sealed appendices fall within the protection of the

Privacy Act, and it does not seek to maintain those documents under seal. Defendant

objects to unsealing the documents, arguing she “relied on” the Privacy Act Order “rather

than seeking her own” protective order. (Appellee’s Resp. to Order to Show Cause at 3.)

But the only justification offered by Defendant is that disclosure would subject her to

“private spite and public scandal.” (Id. at 4.) We have reviewed the portions of the

appendices Defendant wishes to maintain under seal and concluded they do not contain

the type of intensely personal information appropriate for filing under seal.

       Finally, both parties agree that some documents should be maintained under seal

because they fall within the clergy–penitent privilege. (Appellee’s Resp. to Order to

Show Cause at 7-8; Appellant’s Resp. to Order to Show Cause at 5.) We have long

recognized the significant interest parties have in maintaining privilege. Crystal

Grower’s, 616 F.2d at 461. We have also recognized a general public interest in

maintaining robust protections for privileged communications. Id. We have reviewed the

portions of the appendices identified by the parties as containing privileged information

and agree they should remain under seal. Accordingly, pages 86, 196, 206, 275, 299,

347–48, 359, 375–77, 381–83, and 440 should be redacted upon refiling.




                                            -24-
       We therefore direct the government to refile unsealed versions of the appendices,

with the previously identified portions of Dr. Means’ deposition testimony and

clergy–penitent documents redacted. As to the parties’ briefing on appeal, Defendant has

withdrawn her request to file the briefs under seal. (See generally Appellee’s Resp. to

Appellant’s Mot. to File Under Seal.) Because the government moved to seal its brief

only in response to Defendant’s request, we order the parties to refile unsealed copies of

their briefs within 10 days.

                                            V.

       For the foregoing reasons, we REVERSE the district court’s grant of summary

judgment in favor of Defendant and remand for further proceedings. The district court’s

denial of Defendant’s motion to dismiss is AFFIRMED. The parties are ORDERED to

comply with our instructions regarding the briefs and appendix as detailed above.




                                           -25-
United States v. Dillard, Nos. 13-3253 & 13-3266

BALDOCK, J., dissenting.

       This is the third “true threat” case I have sat on during the past year. See also United

States v. Wheeler, 776 F.3d 736 (10th Cir. 2015); United States v. Heineman, 767 F.3d 970,

982–87 (10th Cir. 2014) (Baldock, J., concurring in the judgment). And the decisions are not

getting any easier—this thorny case being a perfect example. Here, in contrast to my

colleagues, I would affirm the district court because: (1) our case law, to my knowledge, has

never been extended this far; and (2) the facts of this case do not merit such an extension.

       The primary issue here is simple: Could a reasonable jury find that, objectively

speaking, Angel Dillard threatened Dr. Mila Means? The Court says yes. The district court

saw it differently, and so do I. The key “threat” in Dillard’s letter is her statement that,

should Dr. Means ever follow through on her plan to provide abortions, Dr. Means “will be

checking under your car everyday-because maybe today is the day someone places an

explosive under it.” This statement was undeniably ill-advised. But was it a true threat,

rather than just an ugly prediction Dillard foolishly chose to voice? See United States v.

Cassel, 408 F.3d 622, 636–37 (9th Cir. 2005) (“Whether the threat is of injury to person or

property, there is no doubt that it must be a threat of injury brought about—rather than

merely predicted—by the defendant.”). The district court classified it as a prediction, in part

because the statement was: (1) conditional, hinging on actions Dr. Means may or may not

take in the future; (2) not imminent, as Dr. Means was years away from acting; and (3)

impersonal, as Dillard never took ownership of the actions in this sentence (nor indeed, of

the entire surrounding paragraph). In response, the Court devotes a good portion of its
analysis to showing that a true threat can indeed be conditional, non-imminent, or

impersonal. And I would agree. But here we are dealing with a letter that is all of the above:

conditional, non-imminent, and impersonal.          The Court does not acknowledge this

complication, much less wrestle with it.

       Any such wrestling should lead to this realization: Case law does not strongly support

true threat exposure in a situation this attenuated. Certainly, none of our own cases cited by

the Court provide a direct factual underpinning for this holding. In our most recent published

decision, we allowed the case to go to a jury where the defendant, on Facebook, urged his

“religious followers” to “kill [several named] cops. drown them in the blood of thier children,

hunt them down and kill their entire bloodlines.” Wheeler, 776 F.3d at 738. Later, he

posted: “to my religious followers and religious operatives. if my dui charges are not

dropped, commit a massacre in the stepping stones preschool and day care [near defendant’s

home], just walk in and kill everbody.” Id. Finally, he posted that “in my faith revenge is

the only commandment.” Id. These posts were personal: Wheeler was calling for action, and

not at all predicting the acts of an unrelated third party. Moreover, only the second post

stated a condition (and therefore implied some level of delay); the first called for immediate

mass murder with no strings whatsoever. In short, Wheeler bears little resemblance to our

case. See also Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1168–69 (10th Cir. 2009)

(reasonable officer could believe true threat had been made where “agitated” man screamed

he “would bring a gun the next time he went to a Commissioners’ meeting” and if “they”

attempted to collect taxes at his house it would provoke a “Ruby-Ridge-like incident”).

                                              -2-
       Going back several decades does the Court no better. In United States v. Crews, we

permitted a true threat prosecution where the defendant said if President Ronald “Reagan

came to Sheridan, [Kansas,] I would shoot him” because it “would be in the best interest of

this nation if that red-necked, bigoted, war-mongering mother fucker were shot.” 781 F.2d

826, 829–30 (10th Cir. 1986). This threat was conditional and lacked immediacy, but (like

Wheeler) it in no way could have been interpreted as an impersonal prediction; rather, it was

a clear first-person threat. See also United States v. Welch, 745 F.2d 614, 616 (10th Cir.

1984) (upholding true threat conviction where man told mental health personnel that if

President Reagan “was here, I would shoot him. I wouldn’t make the same mistake as

Hinckley did. I would kill him.”). Thirteen years after Crews, we upheld a true threat

conviction where the defendant stated in a publicly available message that unless “all white

warriors” took action against the government within “one week from today,” bombs would

be “activated in 15 pre-selected major U.S. cities.” United States v. Viefhaus, 168 F.3d 392,

394 (10th Cir. 1999). That immediacy (one week!) is a far cry from this case, and the

context would require a reasonable listener to assume a personal connection between the

defendant and the bombs. (How would the defendant know the number and location of the

bombs, otherwise?)

       The Court references cases from other circuits, as well. But these cases also plainly

do not involve statements that were conditional, non-imminent, and impersonal. In United

States v. Turner, for example, a defendant who was furious about a recent Seventh Circuit

decision declared in a lengthy online post:

                                              -3-
       that the blood of these three judges would “replenish the tree of liberty,” that
       the judges “didn’t get the hint” sent by a gunman who had murdered the family
       of another federal judge in Chicago, that they had not “faced REAL free men
       willing to walk up to them and kill them for their defiance and disobedience,”
       that their ruling was “so sleazy and cunning as to deserve the ultimate
       response,” and that the judges “deserve to be killed.” The next morning
       Turner posted photographs, work addresses, and room numbers for each of the
       three judges, along with a map indicating the location of the courthouse in
       which they worked, and a photograph of the building modified to point out
       “Anti-truck bomb barriers.”

720 F.3d 411, 413–14 (2d Cir. 2013). This is coordination, not prediction. Nor is it

conditional in the least, or futuristic. Turner threatened murder, and he wanted it done now.

Similar to Turner is United States v. Schneider, 910 F.2d 1569 (7th Cir. 1990). There, the

defendant wrote to the Illinois Supreme Court: “I remind you again, that this ‘Idiota Persona

Non Grata’ [a trial court judge] is of your problem and if [he] is allowed to continue to be

mine, he will be executed . . . .” Id. at 1570 (emphasis added). Although phrased passively

this is still plainly a first-person threat; the judge is giving this defendant problems, and if the

judge is not stopped, execution awaits. Also distinguishable is United States v. Alaboud,

where the defendant in a multitude of phone calls “generally promised retribution upon [his

former attorney] Blake, [Blake’s] law firm, the population of Florida and the Jewish people

if [the defendant] was not refunded his retainer. . . . [For example, the defendant] told the

firm’s answering service that ‘Ax and sledgehammers would be utilized to make justice.”

347 F.3d 1293, 1295–96 (11th Cir. 2003). Needless to say, promising murderous retribution

against your former attorney over a retainer is almost the definition of a personal threat.

       One case from the Ninth Circuit deserves particular attention, because it also involved


                                                -4-
abortion and FACE. See Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of

Life Activists, 290 F.3d 1058 (9th Cir. 2002). There, in a 6-5 en banc decision, the Ninth

Circuit upheld a civil FACE action against a pro-life organization that had published, inter

alia, “WANTED” posters listing abortion doctors and had crafted a “‘Nuremberg Files’

website displaying the names of abortion rights supporters with the names of those

previously killed crossed out . . . .” Wheeler, 776 F.3d at 744 (citing Planned Parenthood,

290 F.3d at 1075, 1080). Past a superficial resemblance, however, differences abound

between Planned Parenthood and this case. To begin, publishing a “WANTED” poster to

the world strongly implies, at minimum, that the publisher wants immediate and

unconditional action—factors which are not present here. In addition, the Ninth Circuit

grounded its decision on “the previous pattern of ‘WANTED’ posters identifying a specific

physician followed by that physician’s murder.” Planned Parenthood, 290 F.3d at 1063

(emphasis added). Thus, like the other cases listed above, it would be impossible to maintain

with a straight face that the “WANTED” poster and “Nuremberg Files” website were mere

predictions about the activities of others. That is not the case here.

       Indeed, the facts here more closely resemble United States v. Lincoln, where the Ninth

Circuit held that a letter to President George W. Bush describing his upcoming assassination

was not a true threat. See United States v. Lincoln, 403 F.3d 703, 705 (9th Cir. 2005)

(Statement: “You [President Bush] will see a good Job Done agin may 2 week’s, maybe 2

months, 3, who know’s. You Will Die too George W Bush real Soon They Promissed That

you would Long Live BIN LADEN.” (emphasis added)).                  To distinguish Planned

                                             -5-
Parenthood, the Ninth Circuit wrote the following, which essentially forecloses applying

Planned Parenthood against Dillard:

       Lincoln’s letter differs from the “wanted” posters in Planned Parenthood
       because in that case there was a clear pattern of appearance on a poster
       followed by murder. It was this “poster pattern” that gave the otherwise
       innocuous posters their threatening portent. In this case, there is no pattern of
       letters written by Lincoln, followed by murder or any other act. There was
       only one letter written by Lincoln. Unlike the single letter in this case, the
       “wanted” posters were publicly posted on the internet, and thus could be
       reasonably interpreted as a signal to unknown third parties to target those who
       appeared on the posters. In contrast, Lincoln’s letter was to be sent only to
       President Bush. In no way could the letter be reasonably viewed as a signal
       to Al Qaeda or anyone else to carry out an attack upon President Bush.

Id. at 707 (emphases added). Just like Lincoln, we have no murderous letter pattern or public

signaling here. Rather, we too have a single letter sent to a single recipient, containing a

description of potential future violence phrased impersonally.

       Let us shift gears, though. I will readily concede that a case need not be on all fours

with a prior precedent before we can send it to the jury. After all, true threats can be found

in many shapes and sizes, and they must be analyzed based on the entire factual context of

a case. I will also concede there are likely situations where a jury could find that a

conditional, non-imminent, and impersonal statement was a disguised true threat. Cf. United

States v. Local 30, United Slate, Tile & Composition Roofers, Damp & Waterproof Workers

Ass’n, 686 F. Supp. 1139, 1149 (E.D. Pa. 1988) (“Daly threatened John Wanner . . . Daly

said: “Well, you better become union or something could happen to your truck. It would be

a shame if something happened to your truck.” (emphases added)). With all this conceded,

I still am not convinced the Government has demonstrated this case to be such a scenario.

                                              -6-
       I begin with the letter itself. To be sure, Dillard did herself no favors with her

acrimonious rhetoric. That said, the key statement—that “maybe today is the day someone

places an explosive under [your car]”—is smack in the middle of a large, impersonal

paragraph listing a dozen or so “consequences” that will occur if Dr. Means ever performs

abortions. Crucially, a number of these events could not possibly be performed by Dillard

or someone in her control. For example, Dillard concludes this list by emphasizing that Dr.

Means’ dreams “will be haunted by bloody, squirming, dismembered babies.” Is Dillard

objectively threatening to haunt Dr. Means in her sleep, à la Freddy Krueger, with visions

of aborted children? Of course not. She is just predicting what she thinks Dr. Means’ own

brain may do to her, presumably trying to frighten her out of providing abortions. This is not

illegal. See, e.g., New York ex rel. Spitzer v. Operation Rescue Nat’l, 273 F.3d 184, 196 (2d

Cir. 2001) (“[G]enerally, a person who informs someone that he or she is in danger from a

third party has not made a threat, even if the statement produces fear.”). But to hold as the

Court does—that Dillard’s car-bomb statement is a threat—logically implies that Dillard’s

“haunted” warning and other surrounding comments are also somehow threats. This seems

to abuse the immediate context, rather than use it.

       The broader context does not help the Court much, either. The Court relies heavily

on the news article informing Dr. Means that Dillard associated with convicted murderer

Scott Roeder. See Slip Op. at 15–16. (Indeed, the Court strongly implies that without Dr.

Means being informed of this connection, Dillard’s letter would not have qualified as a true

threat.) This reliance is problematic on several levels. For starters, as the Court itself notes,

                                               -7-
the article is not in the record. See id. at 5 n.1. For whatever reason, the Government has

not provided it. So, with the pivotal contextual clue in this case nowhere to be found, the

Court is forced to rely on Dr. Means’ testimony about the article in order to send Dillard’s

case to a jury. See id. at 5 (“This article apparently reported that Defendant had befriended

Mr. Roeder . . . .” (emphasis added)). This adds yet another (very uncomfortable) layer of

doubt to these proceedings. In any event, even assuming the article said what it reportedly

said, the Government’s case is not improved to any great degree. This is because even Dr.

Means admits the article stated Dillard and her husband had “no plans to do anything of

violence to anyone.” Id. (emphasis added). As such, I believe the district court got it right:

       While Dr. Means learned from some reports that Dillard admired Roeder’s
       convictions, the very same sources explain that Dillard has publicly deplored
       his violent actions. There is nothing in the evidence before the court showing
       that Dillard ever supported Roeder’s violent action.

United States v. Dillard, 989 F. Supp. 2d 1169, 1175 (D. Kan. 2013) (emphasis added).

       In its analysis, the Court does not mention Dillard’s highly significant public

disavowal of Roeder’s violence. This seems to be a trend, rather than an aberration, as the

Court glosses over a number of contextual clues that favor Dillard here. I will name just a

few. First, the Court does not analyze the fact that neither the FBI nor the Wichita Police

Department viewed Dillard’s letter as a threat.1 Law enforcement reaction alone may not be

       1
         In its background section, the Court mentions that the “FBI did not take any of
the follow-up actions they would have taken had they determined Defendant to be a
threat.” Slip. Op. at 5. The Court never brings this up in its analysis, however. The
Wichita police report—which the Court does not mention at all, in background or
analysis—stated that “there was not a direct threat against . . . Dr. Means.” Dillard, 989
                                                                               (continued...)

                                             -8-
decisive, but it is highly indicative of what a reasonable person would believe. See Fogel v.

Collins, 531 F.3d 824, 832 (9th Cir. 2008) (“The actions of the officers who actually saw the

van and its message make clear that reasonable people would not have understood—and did

not understand—the speech as a true threat.”). The Court also omits from its analysis any

discussion about Dillard’s mailing the letter in an envelope bearing her own name and return

address, which would hardly be prudent for someone intending to issue a legitimate threat.

Nor does the Court acknowledge—in background or analysis—that Dr. Means openly

admitted that “Dillard’s warning letter is similar in content to what she had heard from

family and friends.” Dillard, 989 F. Supp. 2d at 1175. All this context, combined with the

other concerns I raised above, leads me to disagree with the Court.

       In the end, Dillard’s crude rhetoric and the general preference for juries make this a

tricky case. As I have demonstrated, though, the Court is on very shaky ground—in terms

of precedent and factual context—when it sends this case to the jury. And shaky ground is

not a desirable place to be, especially when a core First Amendment right is involved. As

such, I cannot join the Court. See Wheeler, 776 F.3d at 742 (an “unusual set of facts” may

preclude a true threat question from being sent to a jury). With all respect to my colleagues

who see it differently, I dissent.2




       1
       (...continued)
F. Supp. 2d at 1172.
       2
         Because I would affirm the district court, I would not reach the issues of
subjective intent and statutory standing.

                                             -9-
