Anthrax hoax case: Congress has rights to prevent harm by restricting speech

A San Francisco federal appeals court ruled last week that the First Amendment does not extend free speech rights for threatening communications after a self-published author sent sugar labeled as anthrax in the mail.

In 2008, Marc Keyser sent a publicity mailer to the Sacramento News & Review that contained a letter, a spray can labeled as anthrax with a biohazard symbol on it and a CD of his book, "Anthrax: Shock and Awe Terror." The building was evacuated and the FBI warned Keyser not to send any additional mailers, Courthouse News reports.

Keyser sent approximately 120 additional mailers to news agencies, businesses and elected officials with white sugar packets labeled "anthrax" and "sample."

Keyser was indicted on 10 counts of hoax and three counts of mailing threatening communications and was sentenced to 51 months in prison. He appealed the conviction, arguing that mailers were protected expression under the First Amendment. The judges with the federal appeals court in San Francisco did not agree with his reasoning.

"False and misleading information indicating an act of terrorism is not a simple lie," Judge Richard Clifton said, according to Courthouse News. "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."

The three-judge panel unanimously rejected Keyser's appeal, finding that the packets amounted to a genuine threat because of the fear they caused.

"Recipients testified to being 'scared to death,' 'petrified,' 'shocked and appalled,' 'worried,' and feeling 'instant concern,'" Clifton said, according to Courthouse News. "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.'"