- The Washington Times - Monday, November 16, 2009

Threatening words or protected speech?

When Walter Carl Abbott Jr. posted comments last year on a Maryland government Web site saying he would “strangle” Gov. Martin O’Malley, he learned there’s a difference.

The 45-year-old Pikesville construction worker was found guilty of threatening a public official. He is serving two years’ probation for his rant against the governor, whom Mr. Abbott blames for personal financial problems that stem from business competition from illegal immigrants.

Mr. Abbott’s attorney, Arthur M. Frank, said the comment wasn’t a threat but a constitutionally protected criticism of state government. But he said he never got to make that argument at trial, so he took the case to a higher court.

After a hearing earlier this month before the Maryland Court of Special Appeals, Mr. Abbott is awaiting a ruling on whether a Baltimore County judge should have instructed a 12-member jury to consider whether he was exercising his First Amendment rights.

Mr. Abbott maintains his innocence. He says he just has strong opinions.

He has been married 26 years and has two children, ages 26 and 21. He drives a GMC truck and listens to classic rock on the radio. A red, white and blue bandana hanging from his rearview mirror reads: “I love the U.S.A.”

Over the course of his working life, Mr. Abbott has developed strong views about illegal immigrants. Specifically, he thinks the government should prevent illegal immigrants working in the building trades from undercutting legal workers by charging lower fees for their services.

He said he’s watched his business erode, and on March 18, 2008, he woke up without a job and began to search the Internet for contact information for Mr. O’Malley.

Sitting at the kitchen table in his modest Cape Cod-style house, his Siberian husky, Zack, asleep at his feet, Mr. Abbot explained his decision to write to the governor. “I lost my house and my drywall business in the 1990s because of this issue, and I was [upset] about not having any work. I would never hurt the man.”

Out back, a homemade sign leaning against his partially finished garage says: “Deport Illegals - Imprison Bush! By Order of the American People!!!”

Mr. Abbott found contact information for Mr. O’Malley on a state Web site that asked citizens “to provide feedback to Gov. O’Malley about what people think about improving services to all Marylanders,” according to court papers. He responded with a lengthy e-mail to the governor that included the phrase: “If I ever get close enough to you I will [w]rap my hands around your throat and strangle the life from you.”

A few hours later, Mr. Abbott received a visit from two Homeland Security Department agents along with a Maryland state trooper. He wasn’t hard to find: He put his name, address and phone number in the e-mail.

Mr. Abbott said two detectives from another law enforcement agency he could not identify soon showed up, and within an hour he was in handcuffs on his way to see a judge and being asked to turn over his registered Glock 9 mm handgun.

“I never said anything about shooting the man,” he said, adding that his only criminal record is a charge of disorderly conduct in 1990. Court records show he was placed on probation and later found not guilty.

A county judge set bail at $250,000, Mr. Frank said, and Mr. Abbott spent the next four days in jail.

“I got along well in there,” he said. “I think the government should be helping these inmates who are legal citizens get jobs.”

State Police spokesman Greg Shipley said his department “takes its role in protecting the governor very seriously. We make safety and security of the governor and all elected officials our top priority.”

Though he never disputed sending the e-mail, Mr. Abbott said he turned down offers for a plea bargain.

He said he expected to anger Mr. O’Malley but didn’t feel he had done anything wrong. “I don’t agree that you should just go around threatening people, but the Constitution says no laws should infringe on your right of free expression. It doesn’t say ‘except for a Maryland court,’ ” he said.

The jury found him guilty of threatening a public official and Circuit Court Judge Dana M. Levitz issued a suspended six-month jail term and sentenced him to two years of unsupervised probation.

He was also ordered to stay 500 feet from Mr. O’Malley and his wife, Catherine Curran O’Malley, a Baltimore District Court judge. He said he no longer visits Annapolis because it isn’t worth taking the chance.

Mr. Frank took the case to the Maryland Court of Special Appeals, arguing before a three-judge panel Oct. 6 that Judge Levitz erred during trial in telling the jury that they need not find the threat to be real, and in refusing to tell jurors that they should distinguish a threat from constitutionally protected speech.

“I’m hopeful the court will recognize the First Amendment to be a true and legitimate defense in cases like this,” Mr. Frank, who is handling the appeal without pay, said Friday. “Two jurors told me afterward that they felt like they had no choice but to convict, based on the judge’s instructions.”

Maryland Attorney General Douglas F. Gansler did not respond to requests for comment. Attorneys for the attorney general argued in court papers that Mr. Abbott’s threat did not address state immigration policy, that state law prohibits threats to a public official regardless of any intention to do real harm, and that the First Amendment is not a shield for threats of violence to another person.

Rick Abbruzzese, a spokesman for Mr. O’Malley, declined to comment on the Abbott case, Mr. O’Malley’s views on immigration or the First Amendment. He said the governor receives hundreds of calls and e-mails a day.

“Most are respectful in tone, some are thanking him, and others express issues or concerns about jobs, services or energy issues,” he said.

The Court of Special Appeals could decide the case within a few months. If Mr. Abbot wins, he could get a new trial. If he loses, he could be headed for the state’s highest court, the Court of Appeals - and beyond.

“Mr. Frank was so [upset] he told me, ‘I’ll take this all the way to the Supreme Court and it won’t cost you a dime,’ ” Mr. Abbott said.

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