Fred Sisto | Criminal Attorney | Ocean and Monmouth County

Call Us Today
732-898-3232

  • Home
  • Criminal Defense Services
    ▼
    • Drug Crimes
      ▼
      • Drug Manufacturing
      • Intent to Distribute Narcotics
      • Prescription Drug Crimes
      • Leader of Narcotics Trafficking Network
    • Weapons Charges
      ▼
      • Prohibited Weapons and Devices
      • Manufacture, Transport, etc. of Weapons
      • Illegal Possession of a Gun
      • Possession of Weapons for Unlawful Purposes
    • Expungements
    • Theft Attorney
    • Violent Crimes
      ▼
      • Robbery/Burglary
      • Manslaughter
      • Extortion
      • Assault
      • Sexual Offenses
    • Arson
    • DUI / DWI
      ▼
      • Alcohol DUI
      • Drug DUI
      • Refusing a Breath Test
    • Driving with A Suspended License
    • Property Forfeiture
    • Anti-Drug Profiteering
    • Juvenile Delinquency
  • Español / Spanish Speaking Attorney
  • About
    ▼
    • Testimonials
    • Defending Cases In
      ▼
      • Monmouth County
      • Ocean County
  • Blog
  • Contact
    ▼
    • Receive a Call From Fred
  • DUI Checkpoint Alerts
  • Results
  • Payment Options
  • Home
  • Criminal Defense Services
    • Drug Crimes
      • Drug Manufacturing
      • Intent to Distribute Narcotics
      • Prescription Drug Crimes
      • Leader of Narcotics Trafficking Network
    • Weapons Charges
      • Prohibited Weapons and Devices
      • Manufacture, Transport, etc. of Weapons
      • Illegal Possession of a Gun
      • Possession of Weapons for Unlawful Purposes
    • Expungements
    • Theft Attorney
    • Violent Crimes
      • Robbery/Burglary
      • Manslaughter
      • Extortion
      • Assault
      • Sexual Offenses
    • Arson
    • DUI / DWI
      • Alcohol DUI
      • Drug DUI
      • Refusing a Breath Test
    • Driving with A Suspended License
    • Property Forfeiture
    • Anti-Drug Profiteering
    • Juvenile Delinquency
  • Español / Spanish Speaking Attorney
  • About
    • Testimonials
    • Defending Cases In
      • Monmouth County
      • Ocean County
  • Blog
  • Contact
    • Receive a Call From Fred
  • DUI Checkpoint Alerts
  • Results
  • Payment Options
Home >> Terroristic Threats and the First Amendment (Part 3)

January 31, 2022 by Fred Sisto

Terroristic Threats and the First Amendment (Part 3)

Presiding Judge Fisher continued in relevant part: Closer to the issue before us, Kansas’s highest court analyzed and found unconstitutionally broad K.S.A. 2018 Supp. 21-5415(a)(1), a statute similar to N.J.S.A. 2C:12-3(a) in that it proscribes threats made “in reckless disregard of causing fear.” State v. Boettger, 450 P.3d 805, 818 (Kan. 2019). The Kansas Court held that a “reckless disregard” standard rendered the statute unconstitutionally overbroad, concluding that Black does not permit a conviction for speech or expression unless the speaker “possessed the subjective intent to both (1) utter threatening words and (2) cause another to fear the possibility of violence.” Boettger, 450 P.3d at 807-10.

After wading through the various decisions of the federal courts of appeals which interpreted the Black majority opinion and its invocation of the word “intent” in its definition of a true threat as merely suggesting an intent to utter the words, see, e.g., footnote 6, the Boettger court expressed its agreement with Heineman, in which the court held that Black “established that a defendant can be constitutionally convicted of making a true threat only if the defendant intended the recipient of the threat to feel threatened,” 450 P.3d at 814 (quoting Heineman, 767 F.3d at 978), and stated its agreement with the conclusion reached by Bagdasarian as well. The Boettger court thus concluded that Black‘s majority “determined an intent to intimidate was constitutionally, not just statutorily, required.” Id. at 815.

In stating our agreement with the Kansas Supreme Court’s application of Virginia v. Black to a statute similar to N.J.S.A. 2C:12-3(a), we recognize that the matter is not entirely free from doubt. Other state courts have reached different results than the Kansas Supreme Court, see State v. Taupier, 193 A.3d 1, 18-19 (Conn. 2018); Major v. State, 800 S.E.2d 348, 352 (Ga. 2017), while another state court suggested in dictum that a subjective intent to threaten is constitutionally required, Brewington v. State, 7 N.E.3d 946, 964 (Ind. 2014). See also State v. Carroll, (App. Div. 2018) (discussing these concepts in the context of a conviction for retaliation against a witness, N.J.S.A. 2C:28-5(b)). As we have already observed, there is a disagreement among the federal courts of appeals about Black‘s reach, and Black itself did not expressly consider a “reckless disregard” element like that contained in N.J.S.A. 2C:12-3(a).

It is surprising that our nation’s highest court issued the Black opinion with the ambiguous phrase “intent” being used in its analysis. Had the Court specified the type of intent, it could have avoided nationwide litigation at the federal and state level.

Filed Under: Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Testimonials

Fred is a stickler for detail and communicates with clients very, very well. He is smart and astute. I would recommend him unconditionally.

Tom O   

I would highly recommend Mr. Sisto. He is very insightful and proficient, yet still down to Earth. Fred is great at communicating and breaking down the facts. But most importantly, he excels at getting results.

Bill K   

Thanks to Fred I have no criminal record whatsoever.

Luke A   

Great!!! , got my case handled in the exact manner that I was told and would recommend to everyone else in need of legal representation.

Raumelis R   
See More Testimonials

Recent Posts

  • Plea Agreements and New Charges (Part 3)
  • Plea Agreements and New Charges (Part 2)
  • Plea Agreements and New Charges (Part 1)
  • Youth and Withholding Imprisonment (Part 2)
  • Youth and Withholding Imprisonment (Part 1)
  • Marijuana and Diversionary Programs (Part 4)
  • Marijuana and Diversionary Programs (Part 3)
  • Marijuana and Diversionary Programs (Part 2)

Recent Speaking Engagement

Site Disclaimer

Attorney Referral Fees

Frederick P Sisto has earned Lawyer Legion's recognition for Community Leadership
 
Top Criminal Defense Attorney in Brick

Law Office of Frederick P. Sisto

Point Pleasant Office*:
302 Hawthorne Ave, Suite 1
Point Pleasant Beach, NJ 08742

Brick Township Office*:
223 Drum Point Road, Suite 1
Brick Township, NJ 08723

Sea Girt Office*:
2150 NJ-35,
Suite 225
Sea Girt, NJ 08750

Phone: 732-898-3232
Fax: 201-508-3393
*Office visits by appointment only.

Representing clients throughout all court jurisdictions of New Jersey.

WITH THE EXCEPTION OF THE CRIMINAL TRIAL ATTORNEY CERTIFICATION, NO ASPECT OF THIS ADVERTISEMENT HAS BEEN APPROVED BY THE SUPREME COURT OF NEW JERSEY

en English
en Englishes Spanish