Case: 11-13295       Date Filed: 11/27/2013       Page: 1 of 25


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                             —————————————

                                        No. 11-13295

                             —————————————

                        D.C. Docket No. 0:10-cr-60332-KMM-1

UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

ELLISA MARTINEZ,

                                                                       Defendant-Appellant.

                             —————————————
                      Appeal from the United States District Court
                          for the Southern District of Florida

                             —————————————

                                   (November 27, 2013)


Before CARNES, Chief Judge, BLACK, Circuit Judge, and RESTANI,∗ Judge.

PER CURIAM:

       ∗
          The Honorable Jane A. Restani, United States Court of International Trade Judge,
sitting by designation.
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      Ellisa Martinez appeals her conviction under 18 U.S.C. § 875(c) for

knowingly transmitting a threatening communication. We affirm.

                     I. FACTS AND PROCEDURAL HISTORY

      On November 10, 2010, talk-show host Joyce Kaufman at WFTL radio

received an anonymous email form-response stating:

      Dear Ms. Kaufman I was so thrilled to see you speak in person for
      congressman elect west. I was especially exited [sic] to hear you
      encourage us to exercise our second amendment gun rights. I felt
      your plan to organize people with guns in the hills of Kentucky and
      else where was a great idea. I know that you know one election is not
      enough to take our country back from the illegal aliens, jews,
      muslims, and illuminati who are running the show. I am so glad you
      support people who think like me. i’m planning something big around
      a government building here in Broward County, maybe a post office,
      maybe even a school, I’m going to walk in and teach all the
      government hacks working there what the 2nd amendment is all
      about. Can I count on your help? you and those people you know in
      Kentucky? we’ll end this year of 2010 in a blaze of glory for sure.
      thanks for your support mrs kaufman. what does sarah say, don’t
      retreat, reload! let’s make headlines girl!

Several hours after this email was sent, an anonymous woman called WFTL. She

told station officials that her husband had sent the prior email, that he was mentally

ill, and that he was now planning to open fire at a nearby school. The anonymous

woman implored the station to broadcast a plea asking her husband not to carry out

the shooting.

      These communications prompted the Pembroke Pines Police Department to

institute a “Code Red” lockdown on all Broward County schools. The Police


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Department also shut down several other public buildings, requiring officers to

work overtime securing the facilities. Ultimately, however, no shooting occurred

and the anonymous woman sent no further communications.

      Soon after these events, investigators discovered that both anonymous

communications were sent by the same person: Ellisa Martinez. Initially,

Martinez denied any involvement in or knowledge of the incident. However, once

a grand jury indicted her for making a true threat in violation of 18 U.S.C.

§ 875(c), and once the district court denied her motion to dismiss the indictment,

Martinez pleaded guilty.

      In pleading guilty, Martinez reserved the right to appeal the denial of her

motion to dismiss the indictment on the following issues: (1) whether the

indictment was insufficient because it did not allege Martinez subjectively

intended to convey a threat to injure others; and (2) whether § 875(c) was

unconstitutionally overbroad because it did not require the Government to prove

the speaker subjectively intended her statements to constitute a threat.

Concurrent with her guilty plea, Martinez and the Government executed and filed a

factual stipulation. That stipulation recounted the legal elements of an offense

under § 875(c) and detailed the factual basis of Martinez’s crime. Martinez

conceded that she knowingly and willfully sent the November 10th email, and

that “the email contained language that an objectively reasonable jury could find


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beyond a reasonable doubt to be a serious expression of an intent to injure

another person.” At her change-of-plea hearing, Martinez acknowledged she

understood the plea agreement, and the Government read the parties’ factual

stipulation aloud in court.

       After the district court accepted Martinez’s guilty plea, the court ultimately

ordered Martinez to pay the Police Department $5,350.89 in restitution for the

costs incurred securing and safeguarding the schools and students in Broward

County, Florida, as a result of her offense. Martinez appealed.

              II. THE FIRST AMENDMENT AND TRUE THREATS

       Pursuant to her conditional guilty plea, Martinez brings two constitutional

challenges under the First Amendment. First, Martinez contends her indictment

was constitutionally deficient under Virginia v. Black, 

, 

(2003), because it did not allege she subjectively intended to convey a threat

to injure others. Second, Martinez argues that, if § 875(c) does not require

subjective intent, the statute is unconstitutionally overbroad.1

A. True Threats and Intent

       While the First Amendment generally prohibits the Government from

restricting speech based on its message or viewpoint, Ashcroft v. ACLU, 

, 573, 

, 1707 (2002), the First Amendment’s free-speech

       1
        We review constitutional challenges de novo. United States v. Acuna-Reyna, 

, 1284 (11th Cir. 2012).
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protections are not absolute, see Chaplinsky v. New Hampshire, 

, 571,

, 769 (1942). In certain narrowly drawn categories, the Government

may permissibly restrict speech on the basis of content. United States v. Stevens,

, 1584 (2010). These categories of unprotected speech do not

require case-by-case balancing because the harms they impose “so overwhelmingly

outweigh[]” any First Amendment concerns that the “balance of competing

interests is clearly struck.” New York v. Ferber, 

, 763–64, 

, 3358 (1982).

      “True threats” are one such category of unprotected speech. United States v.

Alvarez, 

, 2544 (2012) (plurality opinion). Although statutes

penalizing speech “must be interpreted with the commands of the First

Amendment clearly in mind,” Watts v. United States, 

, 707, 

, 1401 (1969), objective threats of violence contribute nothing to public

discourse and enjoy no First Amendment protection, see R.A.V. v. City of St. Paul,

, 382–83, 

, 2542–43 (1992). The critical issue for the

true threats doctrine is distinguishing true threats from mere political hyperbole;

while the former are outside the First Amendment, the latter is entitled to full

constitutional protection. See 

–08, 89 S. Ct. at 1401–02.

      Martinez argues that the Supreme Court’s decision in Virginia v. Black

draws the distinction between true threats and protected speech based on the


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speaker’s subjective intent. Relying on Ninth Circuit precedent, Martinez contends

Black redefined true threats to require proof the speaker subjectively intended to

threaten listeners. See United States v. Bagdasarian, 

, 1116 (9th Cir.

2011) (holding that a threat—even one “objective observers would reasonably

perceive . . . as a threat of injury or death”—cannot be prosecuted unless the

speaker subjectively intended the speech to be a threat). Therefore, Martinez

claims, her indictment was constitutionally insufficient because it did not allege

she acted with the subjective intent to threaten.

   1. Origins of the True Threats Doctrine

      The true threats doctrine took shape in Watts v. United States. 

–08, 89 S. Ct. at 1399–1402. In Watts, the Supreme Court reversed the

conviction of a man charged with knowingly and willfully threatening the

President under 18 U.S.C. § 871(a), based on the following statements:

      They always holler at us to get an education. And now I have already
      received my draft classification as 1-A and I have got to report for my
      physical this Monday coming. I am not going. If they ever make me carry a
      rifle the first man I want to get in my sights is L.B.J. They are not going to
      make me kill my black brothers.

89 S. Ct. at 1400–01 (internal quotation marks omitted).

      Although the Court acknowledged that true threats were not protected

expression, the Court nonetheless held that Watts’s statements were mere “political

hyperbole.” Id. at 

. When taken in context, the Court


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could not see how Watts’s statements could be interpreted as anything other than

“a kind of very crude offensive method of stating a political opposition to the

President.” 

89 S. Ct. at 1402 (internal quotation marks omitted).

      Importantly, the Court reached this conclusion based on the objective

characteristics of the speech and the context in which it was delivered—the Court

did not speculate as to the speaker’s subjective mental state. See 

the Court looked to where the statement was made: in public during a group

political debate. 

Court looked to the nature of the statement:

it was expressly conditional upon Watts’s conscription into the military—an event

he vowed would never occur. Id. at 

–02. Finally, the

Court looked to the reaction of those in attendance: listeners as well as the speaker

“laughed after the statement was made.” 

, most federal courts of appeals defined true threats

according to an objective standard. See Doe v. Pulaski Cnty. Special Sch. Dist.,

, 622 (8th Cir. 2002) (en banc) (noting that, while some courts applied

a reasonable-speaker standard and others a reasonable-listener standard, “[a]ll the

courts to have reached the issue . . . consistently adopted an objective test” for true

threats). Between Watts in 1969 and Black in 2003, this Court in particular

consistently applied an objective, reasonable-person test when distinguishing true

threats from protected speech. See United States v. Callahan, 

, 965


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(11th Cir. 1983); United States v. Bozeman, 

, 510 (5th Cir. 1974).2

Under that objective standard, a true threat is a communication that, when taken in

context, “would have a reasonable tendency to create apprehension that its

originator will act according to its tenor.” United States v. Alaboud, 

, 1296–97 (11th Cir. 2003) (internal quotation marks omitted).

   2. Virginia v. Black and True Threats

       Despite this history and precedent, Martinez contends Black altered the

Watts framework for true threats and tacitly overruled our case law defining true

threats according to an objective standard. However, four circuits to address the

issue have declined to adopt Martinez’s reading of that decision. See United States

v. Elonis, 

, 332 (3d Cir. 2013) (“[W]e find that Black does not alter

our precedent.”); United States v. Nicklas, 

, 440 (8th Cir. 2013)

(joining the majority of circuits which have held that, in the wake of Black,

§ 875(c) does not require the Government to prove a defendant specifically

intended his or her statements to be threatening); United States v. Jeffries, 

, 479 (6th Cir. 2012); United States v. White, 

, 508 (4th Cir. 2012)

(“A careful reading of the requirements of § 875(c), together with the definition

from Black, does not, in our opinion, lead to the conclusion that Black introduced a

       2
          In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.


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specific-intent-to-threaten requirement into § 875(c) and thus overruled our

circuit’s jurisprudence, as well as the jurisprudence of most other circuits, which

find § 875(c) to be a general intent crime and therefore require application of an

objective test in determining whether a true threat was transmitted.”). But see

United States v. Cassel, 

, 633 (9th Cir. 2005) (holding that Black

requires a subjective-intent analysis).

       We agree with the Sixth Circuit that Black did not work a “sea change,”

tacitly overruling decades of case law by importing a requirement of subjective

intent into all threat-prohibiting statutes. 

; see also 

(“Black does not clearly overturn the objective test the majority of

circuits applied to § 875(c).”).

      In Black, the Supreme Court addressed a state statute making it a crime to

burn a cross with the “intent of intimidating any person or group.” 

–48, 123 S. Ct. at 1541 (internal quotation marks omitted). Although the Court

divided in its rationale, a majority of the Court reaffirmed the basic holding of

Watts and other cases that true threats are not protected under the First

Amendment. See 

123 S. Ct. at 1547–48. The Court defined true

threats as “those 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.” 

123 S. Ct. at 1548. According to a


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plurality of the Court, because the statute made the act of cross burning prima facie

evidence of intent to intimidate, it effectively rendered cross burning a

strict-liability offense. See 

123 S. Ct. at 1550–51 (plurality opinion).

And, without any mens rea requirement, the statute covered more than just true

threats and “create[d] an unacceptable risk of the suppression of ideas.” 

marks omitted).

      Contrary to Martinez’s argument, Black did not import a subjective-intent

analysis into the true threats doctrine. Rather, Black was primarily a case about the

overbreadth of a specific statute—not whether all threats are determined by a

subjective or objective analysis in the abstract. See 

–80

(observing that Black “says nothing about imposing a subjective standard on other

threat-prohibiting statutes, and indeed had no occasion to do so: the Virginia law

itself required subjective ‘intent.’ The problem in Black thus did not turn on

subjective versus objective standards for construing threats. It turned on

overbreadth—that the statute lacked any standard at all”). When interpreting a

statute like § 875(c), which articulates no explicit mens rea requirement and is

therefore treated as a general-intent crime, see United States v. Duran, 

, 1292 (11th Cir. 2010), Black leaves our analysis and objective standard

unaltered.




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       Black’s definition of true threats is fully consistent with a general-intent

standard examining only the objective characteristics of the speech act. See 

. General-intent crimes require only that the defendant actually

intend to perform the prohibited act; she need not subjectively intend the precise

purpose or results of the crime. 

see also Carter v. United States, 

, 268, 

, 2168 (2000). Similarly, Black defined true threats

as those statements a speaker means to communicate—i.e., knowingly

communicate—that contain a serious expression of violent intent. See Black, 538

U.S. at 

(majority opinion). However, the speaker need not

subjectively intend her statement to be a threat, in much the same way she need not

subjectively intend to violate the law or “actually intend to carry out the threat.”3

See 

Court’s definition of intimidation buttresses our interpretation

of true threats. Black defined “intimidation” as a “type of true threat” directed with

the intent—i.e., the specific, subjective intent—to place listeners in fear of bodily

harm or death. See 

123 S. Ct. at 1548. By defining intimidation to


       3
         Moreover, objective standards are not unusual in the free-speech context. See, e.g.,

; see also FEC v. Wis. Right to Life, Inc., 

, 468–69, 

, 2666 (2007) (refusing to base First Amendment doctrine on a speaker’s subjective
motivation); NAACP v. Claiborne Hardware Co., 

, 927–29, 

, 3433
(1982) (analyzing the objective circumstances surrounding the speech to determine how it
“might have been understood” by listeners); Norwell v. City of Cincinnati, 

, 16, 94 S.
Ct. 187, 188 (1973) (holding that a speaker’s subjective motivation was not relevant to whether
his speech qualified as “abusive language or fighting words”).
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include a subjective-intent analysis, Black indicated that the general class of true

threats does not require such an inquiry into the speaker’s subjective mental state.

After all, intimidation is but one type of true threat—a true threat delivered with a

particular, subjectively held intent. See 

qualifies as

intimidation when it is “intended to create a pervasive fear in victims that they are

a target of violence” (emphasis added)). But explicitly requiring subjective intent

for one discrete type of true threat makes little sense if the Court intended all true

threats to require such intent.

      Finally, we find the Third Circuit’s recent opinion in Elonis persuasive. In

rejecting the same reading of Black that Martinez urges on us, the Third Circuit

clearly and precisely explained why that decision did not alter the well-established

understanding of the true threats doctrine. See 

–32.

Particularly noteworthy is the Third Circuit’s insight that “[l]imiting the definition

of true threats to only those statements where the speaker subjectively intended to

threaten would fail to protect individuals from the fear of violence and the

disruption that fear engenders, because it would protect speech that a reasonable

speaker would understand to be threatening.” 

(internal quotation marks

omitted).

      Accordingly, we hold that Black does not require a subjective-intent analysis

for all true threats. 

(“Black does not say that the true threats exception


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requires a subjective intent to threaten”). Knowingly transmitting the threat makes

the act criminal—not the specific intent to carry it out or the specific intent to

cause fear in another. United States v. Fuller, 

, 646 (7th Cir. 2004)

(citing United States v. Kelner, 

, 1025 (2d Cir. 1976)). Therefore,

when the Government shows that “a reasonable person would perceive the threat

as real,” a true threat may be punished and “any concern about the risk of unduly

chilling protected speech has been answered.” 

.

B. Overbreadth and § 875(c)

      Next, Martinez argues that if subjective intent is not required for prosecution

under § 875(c), the statute is unconstitutionally overbroad. Under the First

Amendment, a statute is overbroad if “a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”

(internal quotation marks omitted). In making this

determination, we first construe the statute so that its meaning is clear. United

States v. Williams, 

, 293, 

, 1838 (2008). We then

determine whether the statute, as construed, “criminalizes a substantial amount of

protected expressive activity.” 

128 S. Ct. at 1841.

      After conducting this analysis, we conclude Martinez’s overbreadth claim is

meritless. In its entirety, § 875(c) provides:

      Whoever transmits in interstate or foreign commerce any
      communication containing any threat to kidnap any person or any
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       threat to injure the person of another, shall be fined under this title or
       imprisoned not more than five years, or both.

18 U.S.C. § 875(c).

       The actus reus of the statute is transmitting a threat—that is, a true threat.

See 

. A true threat is determined from the position of an

objective, reasonable person, see 

–97, unless a particular

offense involves “intimidation,” see 

–60, 123 S. Ct. at 1548.

Section 875(c), however, is silent as to mens rea, requiring neither an intent to

place the victim in fear of bodily harm or death, nor any other showing of specific

intent. See United States v. Francis, 

, 122 (2d Cir. 1999) (“There is

nothing in the language or legislative history of Section 875(c) suggesting that

Congress intended it to be a specific-intent crime.”).

       As a result, § 875(c) is a general-intent offense that requires the Government

to show (1) the defendant transmitted a communication in interstate or foreign

commerce, (2) the defendant transmitted that communication knowingly, and

(3) the communication would be construed by a reasonable person as a serious

expression of an intent to inflict bodily harm or death. Cf. 

. Section 875(c) “does not require the government to prove a defendant

specifically intended his or her statements to be threatening.” 

.



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       Construed this way, § 875(c) does not sweep up a “substantial amount of

protected expressive activity.” See Williams, 553 U.S. at 

.

To the contrary, because we construe the statute as applying to true threats—and

only true threats—§ 875(c) on its face criminalizes no protected expressive

activity. After all, true threats fall “outside the First Amendment,” 

, 112 S. Ct. at 2546, since they are “so intertwined with violent action

that” they “essentially become conduct rather than speech,” 

, inflicting injury on the listener “‘by their very utterance,’” 

(quoting 

, 62 S. Ct. at 769).4

       Thus, unlike the statute in Black, § 875(c) does not permit a jury to convict

any time “defendants exercise their constitutional right not to put on a defense,”

nor does it permit the Government “to arrest, prosecute, and convict a person based

solely on” protected expression. See 538 U.S. at 

–51

(plurality opinion). While cross burning can receive protection under the First

Amendment in certain instances, see 

123 S. Ct. at 1551, true threats,

however communicated, are categorically not protected under the First

Amendment, see Madsen v. Women’s Health Ctr., Inc., 

, 773, 114 S.

       4
         Our construction of § 875(c) does not bar defendants from bringing as-applied
challenges if prosecuted for speech that does not constitute a true threat. Cf. Broadrick v.
Oklahoma, 

, 615–16, 

, 2918 (1973). But Martinez has not brought an
as-applied claim—and for good reason. In the factual stipulation supporting her plea agreement,
Martinez admitted sending her threatening email “willfully,” which is to say, she “voluntarily
and intelligently” made her threat with “an apparent determination to carry [it] out.” 

. Martinez has no claim that § 875(c) is unconstitutional as applied to her.
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Ct. 2516, 2529 (1994). Accordingly, § 875(c) does not chill constitutionally

protected speech, because § 875(c) on its face does not permit the Government to

“prosecute—and potentially convict—somebody engaging only in lawful political

speech at the core of what the First Amendment is designed to protect.” 

, 123 S. Ct. at 1551.

      Martinez’s argument that § 875(c) allows for the prosecution of a would-be

Good Samaritan who mistakenly shouts “fire!” in a crowded theater fails for

numerous reasons, not the least of which is that one imaginative hypothetical does

not justify applying the “strong medicine” of the overbreadth doctrine. See

Broadrick v. Oklahoma, 

, 613, 

, 2916 (1973). Like any

other law, § 875(c) is not overbroad simply because litigants “can hypothesize

some deterrent effect on protected speech.” See Shackelford v. Shirley, 

, 940 (5th Cir. 1991). Because invalidating § 875(c) on overbreadth grounds is

a “last resort,” see 

, 93 S. Ct. at 2916, we must, when

possible, “construe the statute to avoid constitutional problems,” 

n.24, 102 S. Ct at 3361 n.24.

      In this case, we have construed § 875(c) in a manner that does not raise

constitutional concerns. Because true threats are unprotected speech, and because

our reading of § 875(c) limits that statute to true threats, Martinez has not

demonstrated a “realistic danger” that § 875(c) will “significantly compromise


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recognized First Amendment protections.” City Council of City of Los Angeles v.

Taxpayers for Vincent, 

, 801, 

, 2126–27 (1984).

Accordingly, we uphold the statute in the face of Martinez’s overbreadth claim. 5

                                     III. CONCLUSION

       For the foregoing reasons, Martinez’s conviction and the district court’s

order of restitution are AFFIRMED.




       5
          We also affirm the district court’s partial denial of Martinez’s motion for
reconsideration and its order imposing $5,350.89 in restitution. Not only did Martinez herself
initially recommend $7,567.51 in restitution, but the court also did not clearly err when it
found—based on Martinez’s factual stipulation—that her offense directly and proximately
caused the Pembroke Pines Police Department’s losses. See United States v. Robertson, 

, 1334 (11th Cir. 2007). Moreover, contrary to Martinez’s assertions, the restitution
order did not include investigatory and prosecutorial costs. Rather, the court expressly limited
restitution to the costs of securing schools in the wake of Martinez’s offense.
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CARNES, Chief Judge, concurring in the result:

      There is a difference between speech that is a true threat, which may be

constitutionally banned, and speech that is just hot invective which cannot be. The

majority opinion draws the line between those two types of speech using the

decision in Virginia v. Black, 

, 

(2003), as its straight

edge. Using the same straight edge, I might draw a different line. But I need not

decide whether I would because the nature of the defendant’s challenge to the

statute before us makes it unnecessary to do so.

                                           I.

      Martinez was convicted under 18 U.S.C. § 875(c), which criminalizes the

transmission in interstate commerce of “any threat to injure the person of another.”

The indictment charged that she knowingly transmitted a communication that

contained a threat to injure another person. She challenges the sufficiency of the

indictment because of its failure to allege that she transmitted the threat with the

intent to cause fear of bodily harm.

                                          II.

      To the extent that Martinez’s challenge is one of statutory interpretation,

arguing that § 875(c) itself requires that the defendant have intended to cause the

necessary fear, our decision in United States v. Alaboud, 

(11th Cir.

2003), forecloses her position. The Alaboud decision held that what § 875(c)


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requires is that the communication and the context in which it was made “would

cause a reasonable person to construe it as a serious intention to inflict bodily

harm,” not that the defendant have intended to cause that result. 

see

also 

remarks must be measured by an objective standard.”);

n.3 (explaining that we have never specified whether we use a listener-

based or speaker-based test, and instead have asked only how a reasonable person

would construe the communication). We are bound by the Alaboud decision to

hold that, as a matter of statutory interpretation, an intent to cause a fear of bodily

harm is not required by § 875(c). And as a later panel we must adhere to that

holding even if we think that the Alaboud panel may have overlooked the Black

decision, which came out six months earlier but was not mentioned in Alaboud.

See, e.g., Smith v. GTE Corp., 

, 1300–04 (11th Cir. 2001).

                                          III.

      Martinez’s challenge goes beyond statutory interpretation, however, and in

that way slips the grip of the Alaboud decision. She contends that her indictment

is invalid because the failure to require an intent to cause fear of bodily harm

renders § 875(c) facially overbroad and unconstitutional on its face. The Alaboud

Court decided not to address the constitutionality of the statute because the

defendant had not raised that issue in the district court. See 

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1295 n.1. Because Martinez did raise the issue in the district court, we must deal

with it.

       The majority rejects Martinez’s facial attack on § 875(c) because it

concludes that the Supreme Court’s Black decision “does not require a subjective-

intent analysis for true threats.” Maj. Op. at 7, 10–15. While I have my doubts

about the majority’s reading of Black, those doubts do not affect the result in this

case because Martinez’s sole constitutional challenge to § 875(c) is that the

provision is facially overbroad. It is not.1 For that reason, I feel it is unnecessary

to take sides in the existing circuit split on whether Black requires a subjective-

intent analysis for true threats. See Maj. Op. at 8–9. Even assuming that it does,

Martinez cannot prevail on her facial challenge to § 875(c).

       A facial challenge that is based on some ground other than First Amendment

overbreadth can succeed only “by establishing that no set of circumstances exists

under which the Act would be valid, i.e., that the law is unconstitutional in all of its

applications.” Wash. State Grange v. Wash. State Republican Party, 

,

449, 

, 1190 (2008) (quotation marks and alteration omitted); see

also Am. Fed’n of State, Cnty. & Mun. Emps. Council 79 v. Scott, 

,

863 (11th Cir. 2013) (holding that to succeed on a facial attack “‘the challenger


       1
         From her motion to dismiss the indictment in the district court through her initial brief
to this Court, Martinez has never raised an as applied challenge to the statute.


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must establish that no set of circumstances exists under which the Act would be

valid’”) (quoting United States v. Salerno, 

, 745, 

,

2100 (1987)).

      A First Amendment overbreadth challenge, however, is different. See, e.g.,

Virginia v. Hicks, 

, 118, 

, 2196 (2003) (“The First

Amendment doctrine of overbreadth is an exception to our normal rule regarding

the standards for facial challenges.”). An overbreadth challenge does not require a

showing that there is no set of circumstances in which the statute could be applied

constitutionally, but it does require a showing that a “substantial number of [a

statute’s] applications are unconstitutional, judged in relation to [its] plainly

legitimate sweep.” Wash. State 

n.6

(quotation marks omitted). The difference is between having to show that all

applications of the statute are unconstitutional and having to show that a

substantial number of them are. It is still a difficult showing to make, and the

burden of making it is on the challenger.

      The Supreme Court has cautioned that we should “not apply the strong

medicine of overbreadth analysis where the parties fail to describe the instances of

arguable overbreadth of the contested law.” 

omitted) (citing

N.Y. State Club Ass’n v. City of New York, 

, 14, 

, 2234

(1988)). In its N.Y. State Club decision, the Supreme Court refused to strike down


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a law on overbreath grounds because there was no definitive showing of the actual

amount of its allegedly unconstitutional applications. The Court explained:

      To succeed in its challenge, appellant must demonstrate from the text
      of Local Law 63 and from actual fact that a substantial number of
      instances exist in which the Law cannot be applied constitutionally.
      Yet appellant has not identified those clubs for whom the
      antidiscrimination provisions will impair their ability to associate
      together or to advocate public or private viewpoints. No record was
      made in this respect, we are not informed of the characteristics of any
      particular clubs, and hence we cannot conclude that the Law threatens
      to undermine the associational or expressive purposes of any club, let
      alone a substantial number of them. We therefore cannot conclude
      that the Law is substantially overbroad and must assume that whatever
      overbreadth may exist should be cured through case-by-case analysis
      of the fact situations to which its sanctions, assertedly, may not be
      applied.

N.Y. State 

, 108 S.Ct. at 2234–35 (quotation marks omitted).

Similarly, in this case Martinez has made no showing “from the text of [§ 875(c)]

and from actual fact that a substantial number of instances exist in which

[§ 875(c)] cannot be applied constitutionally.” 

at 2234. For that

reason, we “cannot conclude that [§ 875(c)] is substantially overbroad and must

assume that whatever overbreadth may exist should be cured through case-by-case

analysis of the fact situations” in which its application would be unconstitutional.

at 2235 (quotation marks omitted). That is what the Supreme Court

has told us to do.

      While the Supreme Court has acknowledged that substantial overbreadth is

“not readily reduced to an exact definition,” Members of the City Council of L.A.
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v. Taxpayers for Vincent, 

, 800, 

, 2126 (1984), it has

declined to find a statute overbroad when it was unlikely that the amount of

protected expression falling within the scope of the statute would “amount to more

than a tiny fraction of the materials within the statute’s reach.” New York v.

Ferber, 

, 773, 

, 3363 (1982). That is the situation here.

Martinez refers to a rare, almost unicornical category of speech communicated by a

speaker who “acts with innocent intent, but negligently conveys a message that

others [reasonably] find to be threatening.” Appellant’s Br. at 20. More than a law

school exam hypothetical is required. The analysis must partake of reality and a

substantial amount of overbreadth must be shown.

      The Supreme Court has instructed:

      [T]he mere fact that one can conceive of some impermissible
      applications of a statute is not sufficient to render it susceptible to an
      overbreadth challenge.        On the contrary, the requirement of
      substantial overbreadth stems from the underlying justification for the
      overbreadth exception itself — the interest in preventing an invalid
      statute from inhibiting the speech of third parties who are not before
      the Court.

City Council of 

, 104 S.Ct. at 2126 (footnote omitted). The

Court emphasized that “there must be a realistic danger that the statute itself will

significantly compromise recognized First Amendment protections of parties not

before the Court for it to be facially challenged on overbreadth grounds.” 

104 S.Ct. at 2126. And in making that determination we are guided by the


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admonition that the “application of the overbreadth doctrine is ‘strong medicine’

that should be used ‘sparingly and only as a last resort.’” Fla. Ass’n of Prof’l

Lobbyists, Inc. v. Div. of Legislative Info. Servs. of the Fla. Office of Legislative

Servs., 

, 1079 (11th Cir. 2008) (quoting Broadrick v. Oklahoma, 

, 613, 

, 2916 (1973)).

      This is not one of those rare, last resort cases where we must use the strong

medicine of overbreadth doctrine. Section 875(c)’s restriction on speech is itself

significantly restricted by the objective requirement that a reasonable person would

believe from the speech and its circumstances that the defendant intended to harm

another. See 

(holding that the government must prove

that a reasonable person would “construe [the communication] as a serious

expression of an intention to inflict bodily harm”) (quotation marks omitted).

Given that requirement –– and assuming Martinez is right that the First

Amendment requires proof of the speaker’s subjective intent to threaten –– there

would be two categories of cases within the scope of § 875(c). The constitutional

application category would include all of the cases in which a reasonable person

would believe that the defendant intended to cause fear of bodily harm and she did

actually intend that. The unconstitutional application category would include only

the cases in which a reasonable person would believe that the defendant intended

to cause fear of bodily harm but she did not actually intend that. Martinez has not


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shown that the unconstitutional category cases are substantial in relation to the

constitutional category ones. As a result, even assuming that the First Amendment

requires proof of subjective intent, Marinez’s overbreadth challenge fails. See

, 93 S.Ct. at 2918.

       For this reason, I agree with my colleagues that Martinez’s conviction is due

to be affirmed. 2




       2
        I also agree with them that the district court’s restitution order is due to be affirmed,
although I would apply plain error review and hold that in light of our decision in United States
v. Washington, 

(11th Cir. 2006), the district court did not plainly err.
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