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The mailing of sugar packets labeled “Anthrax” constitutes a true threat and, therefore, is not protected by the First Amendment; likewise, hoax speech is not entitled to First Amendment protection, because “false and misleading information indicating an act of terrorism tends to incite a tangible negative response by law enforcement, emergency workers, and citizens.”

Marc Keyser mailed hundreds of sugar packets labeled “Anthrax” along with a CD of some of Keyser’s book in an attempt to attract publicity for his self-published book about the dangers of anthrax. A jury convicted Keyser of three counts of communicating false or misleading information regarding the presence of a biological weapon under 18 U.S.C. § 1038(a) and two counts of mailing threatening communications under 18 U.S.C. § 876(c) (“threat” statute). Keyser was sentenced to 51 months in prison based on the district court’s calculation under the advisory Sentencing Guidelines range, which grouped the counts together. Keyser appealed his sentence and conviction. Keyser contended that the First Amendment protected his communications and that, specifically, his conviction under the threat statute could not stand, because his statements were not addressed to specific natural persons. The Ninth Circuit concluded that Keyser’s mailings to Starbucks and McDonald’s constituted true threats, and, therefore were not entitled to First Amendment protection, because Keyser had the intent to threaten. The potential acts of terror required emergency workers and law enforcement to respond with hazardous materials units and other protective procedures, which is an identifiable harm that Keyser’s misleading and false statements caused. The Court determined that Keyser’s mailings, which he addressed to a generic “manager,” were sufficient to indicate that they were addressed to natural persons for purposes of the threat statute. The Court affirmed Keyser’s convictions but remanded in part because of the district court’s improper sentencing calculation. The Court concluded that under the Sentencing Guidelines, hoaxes and threatening communications should not be grouped together because they involve different victims and different acts. AFFIRMED in part, VACATED and REMANDED in part.