Free Speech Rights Don’t Extend to Publicity Stunt

(CN) - The First Amendment does not protect publicity mailers for a self-published book that contained sugar packets labeled "Anthrax", the 9th Circuit ruled.

The federal appeals court in San Francisco affirmed the conviction of Marc Keyser for sending more than 100 "threatening communications" in 2008.

Hoping to attract attention to his self-published book about Anthrax, "Anthrax: Shock and Awe Terror", Keyser, of Sacramento, initially sent his publicity packet only to the Sacramento News & Review.

The packet contained a letter, a CD of the book and a spray can labeled "Anthrax" with a biohazard symbol on it. The newspaper evacuated its offices, a hazardous materials unit responded, and the FBI warned Keyser not to pull the stunt again.

Keyser next sent about 120 publicity mailers to various news agencies, elected officials and businesses. To the news outlets and officials he sent an envelope containing a CD of the book, this time covered with a picture of Colin Powell, and a white sugar packet labeled "Anthrax" and "sample" and with an orange and black biohazard symbol on it. The mailers to businesses went out in purple greeting card envelopes and contained basically the same items.

Questioned again by the FBI, Keyser argued unsuccessfully that the new mailers were different from the initial one because of the word "sample" under "Anthrax" on the sugar packets.

He was eventually indicted on 10 counts of hoax and three counts of mailing threatening communications. A jury convicted him on three counts for mailings to former Congressman George Radinovich and a Sacramento-based McDonald's and Starbucks. He was sentenced to 51 months in prison.

Keyser appealed the conviction to the 9th Circuit, arguing that the mailers were protected expression under the First Amendment. A three-judge panel unanimously disagreed on Thursday.

The panel found that, considering the fear they caused, the packets amounted to a genuine threat. The panel noted that Keyser had admitted as much at trial when he said that he intended the packets to be "provocative", and that he wanted people to be "concerned about the danger we're in."

"False and misleading information indicating an act of terrorism is not a simple lie," wrote Judge Richard Clifton for the court.

"Instead, it tends to incite a tangible negative response. Here, law enforcement and emergency workers responded to the mailings as potential acts of terror, arriving with hazardous materials units, evacuating buildings, sending the samples off to a laboratory for tests, and devoting resources to investigating the source of the mailings. Recipients testified to being 'scared to death,' 'petrified,' 'shocked and appalled,' 'worried,' and feeling 'instant concern.' The staffers in Congressman Radinovich's office and the McDonald's manager were deeply concerned for their safety and the safety of those around them until they were informed, hours later, that they were not exposed to anthrax. Prompting law enforcement officials to devote unnecessary resources and causing citizens to fear they are victims of a potentially fatal terrorist attack is 'the sort of harm ... Congress has a legitimate right to prevent by means of restricting speech.'"

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