[00:00:00] Speaker 02:
Our next case, Terry V. Drummond, number 246046.

[00:00:09] Speaker 02:
Counsel, you may proceed.

[00:00:11] Speaker 00:
Thank you, Your Honors, Devrata Westey, for the plaintiff's appellants, and may it please the Court, I have to reserve about two minutes of my time today for rebuttal, but I'll start today with the upshot.

[00:00:20] Speaker 00:
We are here today because Oklahoma law permits what the Constitution forbids, felony convictions for expression without proof of mens rea.

[00:00:30] Speaker 00:
There is no mens rea in Oklahoma's statutory definition of threats constituting riot, but Kahnerman held that the mens rea element is constitutionally required to protect free speech, fair notice, and to restrain overzealous police.

[00:00:45] Speaker 00:
And its omission, quote, chills too much non-threatening protected expression, end quote.

[00:00:54] Speaker 00:
That omission gave Oklahoma the power to silence the 2020 protest movement in the state.

[00:00:59] Speaker 00:
And therefore, this court should vacate the liberal court's order and reject defendant's arguments to the contrary, which would functionally insulate threat statutes from constitutional challenge.

[00:01:10] Speaker 00:
I'll start first today with why the district court's statutory construction is incorrect and why the motion certifies an appropriate alternative remedy before moving second into why the statute is unconstitutionally overbroad and vague without mens rea.

[00:01:25] Speaker 02:
Could I just ask you, as we get started on that,

[00:01:29] Speaker 02:
Would adding the word recklessly to any threat make Section 1311 constitutional?

[00:01:38] Speaker 00:
Yes, Your Honor.

[00:01:38] Speaker 00:
And I think it's an important point to flag, especially on the mission to certify, because the question goes directly to the counterman's standard.

[00:01:48] Speaker 00:
But I'll start with the statutory construction point and why the statutory construction that the district court adopted below is incorrect.

[00:01:56] Speaker 00:
When federal courts are interpreting state law, they are bound to accept the construction that is reasonable and readily apparent from the text.

[00:02:04] Speaker 00:
But the district court here, interpreting language that says that any threat to use force or violence with immediate power of execution is a crime, said that the word willfully is nonetheless part of the statute.

[00:02:15] Speaker 00:
That was error because none of the traditional tools of statutory construction under Oklahoma law support that construction.

[00:02:21] Speaker 00:
Text, case law, and history.

[00:02:24] Speaker 04:
Is there anything in Oklahoma law that would suggest that recklessly and willfully are the same thing?

[00:02:30] Speaker 00:
There is support, and I believe the case that both the parties are debating about, Wick v. Gunn, based on whether the context of the statute supports a higher level of mens rea.

[00:02:43] Speaker 00:
But I think Wick v. Gunn sets the default rule that willfully means something along the lines of voluntarily, ordinarily in criminal law.

[00:02:50] Speaker 00:
And the most recent interpretations from the Oklahoma Court of Criminal Appeals said that the term willfully does not connote an awareness of risk or harm to the victim.

[00:03:02] Speaker 00:
And so I think that in the context of this statute, it probably means something along the lines of voluntariness.

[00:03:07] Speaker 00:
And I think that makes sense based on where the word willfully is purportedly gleaned from in the text.

[00:03:13] Speaker 00:
If the word willfully comes from the term threats, which is defined by the definition as just an utterance of an intent

[00:03:20] Speaker 00:
to express harm or intent to harm an individual, then the word willfully probably is connected to the term utterance, which is a voluntary statement, just any voluntary statement.

[00:03:32] Speaker 02:
So are you starting with the text?

[00:03:34] Speaker 00:
I'll start with the text.

[00:03:35] Speaker 02:
Let me ask you a question about the text.

[00:03:37] Speaker 02:
So 1311 requires that the threat must be made by three or more persons acting together.

[00:03:44] Speaker 02:
Why don't those words suggest that there must be

[00:03:48] Speaker 02:
an agreement and therefore some kind of mens rea.

[00:03:53] Speaker 00:
So I think it's true that they require some kind of agreement, but I don't think that's enough to give us mens rea.

[00:03:59] Speaker 00:
I think we make this point in our briefing that the term common intent, which comes from the acting together language, doesn't set or establish what level of mens rea is supposed to be shared amongst the parties.

[00:04:10] Speaker 00:
And I think that's important, particularly for a substantial over-birth and fakeness claim, because the parties on the ground, the people on the ground affected by the statute,

[00:04:17] Speaker 00:
need to be able to tell what conduct is prescribed and what conduct isn't.

[00:04:21] Speaker 02:
All right.

[00:04:22] Speaker 02:
One other question about the text.

[00:04:26] Speaker 02:
The statute requires that the threat be, quote, accompanied by immediate power of execution.

[00:04:35] Speaker 02:
Why doesn't that phrase limit the coverage of any threat to mostly unprotected speech?

[00:04:42] Speaker 00:
Sure.

[00:04:43] Speaker 00:
So I have a couple reactions to the immediate power of execution language.

[00:04:47] Speaker 00:
I'll start with its broadest, at its most glossiest interpretation.

[00:04:51] Speaker 00:
It probably connotes at most an objective standard.

[00:04:54] Speaker 00:
But both this court and the counterman court rejected an objective standard as sufficient to limit threat statutes out of substantial overbreath claims like this one.

[00:05:02] Speaker 00:
At its worst, and I think its most reasonable interpretation, what it actually does

[00:05:07] Speaker 00:
is it isolates one of the factors that a judge might otherwise take into account in an objective inquiry and elevates it to an element.

[00:05:14] Speaker 00:
But I don't think that's enough to save it from a statistical inquiry either.

[00:05:19] Speaker 00:
I think on this point, Virginia versus Black is particularly instructive.

[00:05:23] Speaker 00:
Virginia versus Black tells us that you can't substitute a fact, even a particularly relevant fact for context, to substitute for mens rea.

[00:05:32] Speaker 00:
Mens rea is indispensable and cannot be replaced by, no other element can do the work that mens rea does.

[00:05:37] Speaker 04:
So is it your position that if countermen isn't satisfied, then the statute is per se

[00:05:45] Speaker 04:
overbroad, sort of notwithstanding its plainly legitimate sweep?

[00:05:50] Speaker 04:
I mean, you don't disagree that it has a plainly legitimate sweep, right?

[00:05:54] Speaker 00:
I don't disagree that there are constitutional applications of the statute.

[00:05:58] Speaker 00:
I would disagree that it survives its substantial overbreath challenge.

[00:06:03] Speaker 04:
I asked you two questions that combined.

[00:06:04] Speaker 04:
I apologize.

[00:06:05] Speaker 04:
It was in our fault.

[00:06:07] Speaker 04:
Going back to my first question, what is your position?

[00:06:09] Speaker 04:
If counterman isn't satisfied, is it your position that the statute is per se overbroad?

[00:06:14] Speaker 00:
I think so, and I think here's why.

[00:06:16] Speaker 00:
Ketterman explains that when a statute doesn't contain the requisite mens rea of recklessness, then there's too much chill on the ground, because people on the ground will opt, reasonably well-informed people will opt to self-censor themselves instead of risk, arrest, prosecution, and perhaps an appeal where the state courts will get it right.

[00:06:35] Speaker 00:
These are almost word for word what Justice Kagan's opinion for the court said.

[00:06:39] Speaker 00:
And the other point I would make is that without recklessness in the statute,

[00:06:42] Speaker 00:
The prosecution is never held to the standard that counterman sets out, which means that there's always a risk that the underlying speech of the prosecution is protected.

[00:06:55] Speaker 04:
But you have to show that it's a substantial amount of protected speech.

[00:06:59] Speaker 04:
And why isn't it that the other sort of narrowing language within the text of the statute itself, leaving aside the district court's construction, doesn't make it constitutional?

[00:07:13] Speaker 00:
Sure.

[00:07:14] Speaker 00:
So besides the points I was making earlier with Judge Matheson about the immediate power of execution language, not doing the work to limit it out, I think it might be helpful here to focus perhaps on an example that we said in our brief.

[00:07:24] Speaker 00:
So one of the categories of speech that is protected that we're worried about with this statute is things like jokes or hyperbolic expressions.

[00:07:32] Speaker 00:
So imagine someone who's at a bar with their friends, three or more people acting together, and they're drinking a cocktail, and they make a joke about throwing a Molotov cocktail.

[00:07:40] Speaker 00:
If they have a lighter on them, they have immediate power to execute on that threat, and it constitutes a riot under Section 1311.

[00:07:47] Speaker 00:
And if those facts sound ridiculous, that's actually the facts of Perez versus Florida, slightly modified to accommodate the immediate power of execution language in the statute.

[00:07:56] Speaker 00:
And that conviction was affirmed by the Supreme Court, or well, cert was denied by the Supreme Court in that case.

[00:08:02] Speaker 03:
What do we do with the more recent Oklahoma cases where either in the charging document

[00:08:10] Speaker 03:
or when the court is considering jury instructions and approving those instructions, it contains a mens rea element.

[00:08:19] Speaker 03:
Either they state it in the charging document willfully, unlawfully, intentionally,

[00:08:26] Speaker 03:
or the jury instructions include that?

[00:08:29] Speaker 03:
Doesn't that tell us that, I mean, if you approve the jury instructions, the court is saying these are the elements of that statute.

[00:08:37] Speaker 00:
So I'll take the charging documents first before addressing the jury instructions.

[00:08:41] Speaker 00:
I don't think that the charging documents are at all a reliable indicator of the statute's construction

[00:08:46] Speaker 00:
or what reasonably well-informed people on the ground can expect for their prescribed conduct.

[00:08:51] Speaker 00:
And I think here's why.

[00:08:53] Speaker 00:
Most of the charging documents that my friend on the other side and the district court cite come from well before the turn of the century, usually in the early 20th century.

[00:09:02] Speaker 00:
And in all of the cases that the district court cited and my friends are citing,

[00:09:07] Speaker 00:
the issue of mens rea was never teed up.

[00:09:09] Speaker 00:
And so it would be like if on a complaint alleging negligence, if the plaintiff alleges, for example, injury, duty, breach, and causation, but then also says the defendant's conduct was willful so we also get punitive damages.

[00:09:22] Speaker 00:
And the court says something along the lines of,

[00:09:23] Speaker 00:
the plaintiff has adequately or sufficiently alleged negligence, that doesn't suddenly elevate the willful conduct element into an element of the negligence claim.

[00:09:33] Speaker 00:
All they're saying is that the complaint is sufficient.

[00:09:36] Speaker 00:
The same is true for the cases that my friend cites.

[00:09:38] Speaker 03:
Well, for charging instructions, I mean charging documents, I think it's a little different.

[00:09:45] Speaker 03:
On jury instructions, you're, you know, this is what the jury is told they have to find in order to find that you have violated the statute.

[00:09:55] Speaker 03:
So to me, that has a little more weight than the charging documents.

[00:09:59] Speaker 00:
So then I'll turn to the jury instructions, and here I really urge the court to read at the jury instructions of the defendant's site, because there is no mens rea in the threats definition that the jury instructions at the defendant's site.

[00:10:10] Speaker 03:
Well, I don't think any of them involved a threat.

[00:10:13] Speaker 00:
So I think that there are two jury instructions that are cited in the briefs.

[00:10:18] Speaker 00:
One is cited contemporaneously with the adoption of the statute, and one is proposed by the friend that is the current jury instruction.

[00:10:23] Speaker 00:
Neither of them contain a mens rea to limit the definition of threats under the statute.

[00:10:29] Speaker 00:
And I think that's particularly harmful for the position of my friend on the other side.

[00:10:35] Speaker 02:
Well, let me give you one of the cases.

[00:10:38] Speaker 02:
This is Johnson v. State, OCCA 1919.

[00:10:43] Speaker 02:
that upheld the jury instruction, which included the phrase, common design and intent, and included the phrase, any threat to use force or violence.

[00:10:54] Speaker 02:
Why doesn't that show a narrowing construction of Section 1311?

[00:10:59] Speaker 00:
So I don't understand Johnson versus State to tell us what the level of mens rea is there.

[00:11:04] Speaker 00:
And I think this goes back to your earlier question, which is that common designer intent still doesn't tell us what level of mens rea and what people on the ground can expect in terms of police enforcement of the statute.

[00:11:15] Speaker 02:
Well, but I understand your argument to be that even willfully and common intent are not at least

[00:11:27] Speaker 02:
readily ascertainable from the Oklahoma cases because most of them involve conduct rather than threats.

[00:11:37] Speaker 02:
The Johnson case gave me a little pause, so that's why I'm asking you about it.

[00:11:41] Speaker 00:
So I don't think that we have qualms with the interpretation of common intent because I think that does flow quite naturally from acting together.

[00:11:49] Speaker 00:
I just don't think that it provides the mens rea element that Kahnerman was talking about.

[00:11:54] Speaker 00:
And I also want to, before my time expires in the opening, emphasize that even if the common intent prong does, you know,

[00:12:00] Speaker 00:
suggest that there's a mens rea, then we walk right into the vagueness problem, which is that this is a joint liability statute, which is particularly alarming because not only do speakers not know what speech is covered and what speech is not, because there's no identifiable level of mental state, but they also don't know how to adequately distance themselves from other speakers on the ground to protect themselves when other speakers might cross the line.

[00:12:22] Speaker 02:
Could I just ask you though, at page 15 of your brief,

[00:12:27] Speaker 02:
You say the text of 1311 is unambiguous.

[00:12:32] Speaker 02:
If that's so, why would we need to certify a question?

[00:12:35] Speaker 00:
So we maintain that there's no evidence of mens re in the statute, and we don't think that that's disputable.

[00:12:41] Speaker 00:
But I think our motion to certify acknowledges that the record on this point is quite old.

[00:12:46] Speaker 00:
It's quite stale.

[00:12:47] Speaker 00:
The last time that the Oklahoma Court of Criminal Appeals dealt with the statute was in 1947.

[00:12:51] Speaker 00:
And so if the court wants the most accurate reading of the statute, it can get that directly from the Oklahoma Court of Criminal Appeals.

[00:12:58] Speaker 02:
I understand, but that suggests that it is ambiguous.

[00:13:03] Speaker 02:
that it isn't as clear as one would like and direction is needed.

[00:13:08] Speaker 02:
But if it's unambiguous, why would we need help?

[00:13:12] Speaker 00:
So if the court believes that the mens re is unambiguously not there, then you're correct.

[00:13:18] Speaker 00:
The motion to certify is not necessary, you can reverse on that basis.

[00:13:21] Speaker 00:
But the motion to certify exists as an alternative to affirmance, because at the very least, a narrowing construction should issue from the state court, not the federal courts, so that at the very least, we know what the statute says authoritatively.

[00:13:36] Speaker 00:
And I see my yellow light is on, so if there are no further questions, I'll reserve the remainder of my time for rebuttal.

[00:13:53] Speaker 01:
Good morning, Your Honors.

[00:13:55] Speaker 01:
Cullen Sweeney for Defendants at Belize.

[00:13:57] Speaker 04:
Counsel, what are the elements of a 1311 offense?

[00:14:02] Speaker 01:
So the elements are straightforwardly set out in the statute.

[00:14:05] Speaker 01:
Any use of force or violence or, as relevant here, any threat to use force or violence.

[00:14:11] Speaker 01:
Immediate power of execution.

[00:14:14] Speaker 01:
The joint purpose or common element factor.

[00:14:17] Speaker 01:
Three people, the numerosity.

[00:14:19] Speaker 01:
And acting together and without authority of law.

[00:14:23] Speaker 04:
No mens rea.

[00:14:24] Speaker 04:
No mens rea.

[00:14:26] Speaker 02:
What happened to the district court's statement of what it means?

[00:14:36] Speaker 01:
We would contend that there is a mens rea that can be readily imported.

[00:14:42] Speaker 01:
under very common, well-established principles of interpreting or reading into the scienter or mens rea element.

[00:14:52] Speaker 03:
So let me, I just want to make clear, in answer to Judge Rossman's question of what the text of the statute provides for the elements, you can see there is no mens rea.

[00:15:06] Speaker 01:
Of course, looking solely to the text, we can't get around that.

[00:15:14] Speaker 02:
Don't you argue in your brief that any threat means true threat?

[00:15:22] Speaker 01:
I would not go that far.

[00:15:30] Speaker 01:
I think that in this case,

[00:15:34] Speaker 01:
a threat to use force of violence would be, I'll get away from the word true, because I don't think it does any significant work with respect to the statute.

[00:15:45] Speaker 01:
We're dealing with the force of violence or the threat thereof.

[00:15:49] Speaker 01:
I don't think that the true doesn't add anything to the equation.

[00:15:54] Speaker 02:
I was interested, now that you mention that, in looking at this again, if there is a mens rea

[00:16:04] Speaker 02:
to be implied somewhere.

[00:16:09] Speaker 02:
You've got the conduct part of the statute, force or violence, and then you've got the threat part of the statute.

[00:16:16] Speaker 02:
If there is a mens rea, is it the same one for both, or is there a different mens rea for the conduct and another one for the threat?

[00:16:24] Speaker 01:
I think it's certainly the same mens rea.

[00:16:27] Speaker 01:
There's nothing on the text of the statute or in the court of criminal appeals'

[00:16:32] Speaker 01:
line of interpretation that would indicate there was any reason to differentiate between those.

[00:16:38] Speaker 02:
So if it's reckless, if it is reckless, that would be the mens rea for the whole statute.

[00:16:46] Speaker 01:
It would be reckless all the way through, and under countermen it has to be.

[00:16:50] Speaker 01:
Well, it does for the threat.

[00:16:52] Speaker 01:
For any threat, yes.

[00:16:54] Speaker 04:
So you agree that recklessness is the requisite mens rea for this statute after countermen?

[00:17:00] Speaker 01:
There's no other way.

[00:17:03] Speaker 01:
There is no other way.

[00:17:05] Speaker 01:
It's come from on high.

[00:17:06] Speaker 04:
It's come from on high, indeed.

[00:17:08] Speaker 04:
So if the district court, instead of recklessly, says willfully, and Oklahoma law says willfully is not the same thing as recklessly, why don't we have a non

[00:17:22] Speaker 04:
reasonable interpretation here and reversible air.

[00:17:28] Speaker 01:
Well, in this case, of course, the district court had the benefit of countermen.

[00:17:35] Speaker 01:
And so I think implicitly, at minimum, the district judge's gloss on the willful phrasing was certainly with not just the benefit, but the binding command of countermen.

[00:17:51] Speaker 04:
But how can you comply with both a willful and reckless mens rea?

[00:17:55] Speaker 04:
Is that what you're contending?

[00:18:02] Speaker 01:
I think that the common notion of willfulness would have to be subsumed into the recklessness definition.

[00:18:12] Speaker 01:
And to orient things differently, I think the only remedy

[00:18:26] Speaker 01:
which I don't think is reasonable in the case of statutes being interpreted in light of new Supreme Court precedent, is for a legislature itself to insert exactly those words.

[00:18:36] Speaker 01:
But that's not a burden that's required of courts or legislatures.

[00:18:42] Speaker 02:
Well, the district court performed rather traditional conventional over-breadth analysis.

[00:18:49] Speaker 02:
And the first step is to construe the statute.

[00:18:53] Speaker 02:
And part of the analysis was to determine whether Oklahoma case law had performed some kind of narrowing interpretation.

[00:19:04] Speaker 02:
Yes.

[00:19:05] Speaker 02:
Does your argument depend on the validity of that analysis?

[00:19:13] Speaker 02:
In other words, are you saying the district court got it right?

[00:19:19] Speaker 02:
Yes.

[00:19:21] Speaker 02:
What if we decide that we don't think the district court got it right because the OCCA has not provided reasonable and readily apparent narrowing construction of the words any threat.

[00:19:38] Speaker 02:
under 1311 as requiring a mens rea.

[00:19:43] Speaker 02:
If that's how we look at those Oklahoma cases, contrary to the district court, I'm not sure why you would oppose certification under those circumstances.

[00:19:59] Speaker 01:
As that question is teed up, Judge Matheson, then as an alternative to reversal, we would embrace certification to let the Court of Criminal Appeals express what we think they've essentially been saying all along, i.e.

[00:20:14] Speaker 01:
for over a century.

[00:20:15] Speaker 02:
I thought that's what you might say, but I wanted to make sure.

[00:20:21] Speaker 03:
Well, the Oklahoma case law, you know, it's very old.

[00:20:26] Speaker 03:
They haven't really looked at the statute in a long time.

[00:20:30] Speaker 03:
If you look at the cases that are closest to when the statute was passed, I mean, we've got a case that says the only elements are and has no mens rea in it.

[00:20:42] Speaker 03:
I'm going to find the name of that case in just a minute.

[00:20:48] Speaker 03:
Wouldn't we look at the interpretation

[00:20:52] Speaker 03:
of the language of the statute closest to when it was adopted?

[00:20:57] Speaker 01:
Well, and that's exactly what the district court did.

[00:20:59] Speaker 01:
And it's specifically Castillo v. State, which I believe is a 1916 decision.

[00:21:05] Speaker 01:
and the willful and common intent language was directly imported from that decision.

[00:21:12] Speaker 01:
I know there are a cluster of criminal appeals court cases from around the time of that enactment, but all of those that do address the common intent and willfulness element are all, sometimes I think the factual context of the

[00:21:34] Speaker 01:
of the force of violence, not the threat, but the force itself do not always provide the full gloss.

[00:21:42] Speaker 01:
But the district judge, I think, honed in on precisely the ones that do.

[00:21:51] Speaker 04:
But if the cases are mixed, how can it be readily apparent?

[00:21:54] Speaker 04:
Isn't that the standard you have to satisfy?

[00:21:58] Speaker 01:
Or defend?

[00:21:59] Speaker 04:
That's the standard the district court had to apply.

[00:22:01] Speaker 01:
Certainly.

[00:22:04] Speaker 01:
Well, reasonable and readily apparent, not an unreasonable construction.

[00:22:09] Speaker 01:
And I think the closest ones, not mixed, but the closest within the factual zone and the legal zone of interpretation do support that Castile line.

[00:22:25] Speaker 01:
And Castile relies on, I think, a 1911 case that cites extensively called the proctor.

[00:22:31] Speaker 01:
same intent language, and that would have been issued only a year after the statute's enactment.

[00:22:39] Speaker 03:
Well, in 1910, in Cochran v. State, the court is looking at whether you can convict a defendant of robbery based on an information that charged him only with riot.

[00:22:53] Speaker 03:
And what the court focuses on is that the elements of riot doesn't have

[00:23:00] Speaker 03:
any intent requirement where robbery does.

[00:23:04] Speaker 03:
I mean, that one's pretty bad for you, isn't it?

[00:23:14] Speaker 01:
So I think in Cochrane, that would be... I would try to cabin that to its facts, which involved

[00:23:28] Speaker 01:
violent conduct, where I think maybe the court didn't have to reach or labor to reach the intent or joint purpose element.

[00:23:39] Speaker 01:
And that's the best limiting clause I can give on that.

[00:23:41] Speaker 03:
Well, the court stated the only elements of riot are the use of force or violence or threats to use force or violence accompanied by immediate power of execution and contrasted that with robbery, which contained varying degrees of intent.

[00:23:58] Speaker 01:
and said it's not good enough to... I'm perceiving that maybe the district courts and our position on criminal appeals precedent might not have the clarity that the bench sees.

[00:24:16] Speaker 03:
Well, I see a fair amount of inconsistency and I see a difference between Cochrane when they're actually deciding what are the elements of robbery

[00:24:28] Speaker 03:
and some of the later cases where they're saying this information or these jury instructions were, quote, sufficient.

[00:24:41] Speaker 01:
Going to the jury instruction of charging element cases, I see that in

[00:24:49] Speaker 01:
If there's a through line through any of these cases, they're still interpreting and upholding the statute with an imported common law meaning and when the occasion is there to bring it up, the common intent.

[00:25:13] Speaker 02:
I take it you would agree that federal court, whether it's district court or this court, may not itself search for a narrowing construction.

[00:25:28] Speaker 02:
In other words, if there's going to be a narrowing construction, it's got to come from the Oklahoma courts.

[00:25:41] Speaker 01:
I think that if any court finds that it's readily susceptible to narrowing, then a federal court could.

[00:25:55] Speaker 01:
Could make that determination just the same.

[00:26:00] Speaker 02:
I'm going to rephrase.

[00:26:02] Speaker 02:
To the extent that a federal court could do a narrowing construction, it needs to be based on reasonable and readily apparent state law, including state court interpretations.

[00:26:18] Speaker 02:
In other words, the district court or this court couldn't just say, well,

[00:26:23] Speaker 02:
countermen got decided must be recklessly and we're done.

[00:26:28] Speaker 01:
That seems a little too easy.

[00:26:29] Speaker 02:
That option isn't available, correct?

[00:26:32] Speaker 01:
Yes, correct.

[00:26:47] Speaker 01:
Well, Your Honors, are there any other questions early on on certification or?

[00:26:52] Speaker 02:
Well, I'd be interested in knowing what you think the phrase common intent means.

[00:27:05] Speaker 01:
I think it is, at the time of the enactment, it would imply and carry with it a common law understanding of joint purpose and an intent to act unlawfully.

[00:27:18] Speaker 01:
I think if that is read or harmonized in line with contemporaneous precedent dealing with

[00:27:31] Speaker 01:
with a willfulness standard being equated to recklessness, like in the 1917 case of Wick v. Gunn, then I think these are, the search for meaning or the desire for clarity are usually in law essentially flawed endeavors.

[00:27:50] Speaker 01:
I would contend that the district court did find something reasonable and something

[00:27:59] Speaker 01:
apparent enough from the Castile and Proctor line of jurisprudence.

[00:28:04] Speaker 01:
And when read conjointly with other contemporaneous understandings, then I think it is a defensible and affirmable construction of what 1311 says and always has said.

[00:28:23] Speaker 03:
The mens rea that was talked about is willful, willfulness.

[00:28:29] Speaker 00:
Yes.

[00:28:30] Speaker 03:
So if we were to accept that willfulness and recklessness are not necessarily the same thing and that recklessness is a higher level of mens rea, then those cases wouldn't really be enough to comply with the most recent Supreme Court true threats authority.

[00:28:50] Speaker 03:
Would you agree with that?

[00:28:51] Speaker 01:
I think that I would, as framed, yes.

[00:29:02] Speaker 01:
But in line with the precedent as we're interpreting, I would still hold that it's adequate.

[00:29:10] Speaker 03:
Because you say willfulness and recklessness are equivalent.

[00:29:16] Speaker 03:
That's a question.

[00:29:19] Speaker 01:
Under Wick v. Gunn, yes.

[00:29:23] Speaker 01:
I can quickly point you toward there is a 1922 Oklahoma Supreme Court decision, US Zinc, which also adopts the recklessness language.

[00:29:36] Speaker 01:
Almost 100 years later, the Oklahoma Supreme Court is repeating the US Zinc

[00:29:42] Speaker 01:
language, importing that WICV gun, reckless misunderstanding.

[00:29:47] Speaker 01:
It's a 2019 Oklahoma Supreme Court decision.

[00:29:51] Speaker 01:
I think these are, and not in our appellee's brief, but I would point you to that case law on the recklessness standard.

[00:30:01] Speaker 01:
I think the larger point being that they're

[00:30:04] Speaker 01:
There is a discernible, I would hope a readily discernible through line in Oklahoma state jurisprudence that illuminates the meaning and effect of section 1311.

[00:30:16] Speaker 01:
Thank you, counsel.

[00:30:20] Speaker 01:
Thank you, your honors.

[00:30:33] Speaker 00:
Thank you, Your Honors.

[00:30:35] Speaker 00:
A couple quick points.

[00:30:36] Speaker 00:
I heard my friend today to make an important and dispositive concession.

[00:30:39] Speaker 00:
They cannot argue with the text of the statute, which does not include mens rea.

[00:30:44] Speaker 00:
That disposes of the statutory construction point, and you can vacate or reverse on that basis alone.

[00:30:49] Speaker 00:
But I also want to emphasize that it is not for the federal courts to add a gloss to state law, because it is neither binding on defendants nor does it remedy the plaintiff's harm or the chill to their speech.

[00:31:01] Speaker 00:
If any gloss is to come, it should come from the state courts in the first instance.

[00:31:06] Speaker 00:
I also want to emphasize that the word common intent does not include a mens rea element.

[00:31:10] Speaker 00:
It is very common in Oklahoma civil law statutes that create joint liability in torts.

[00:31:15] Speaker 00:
We explained that in our opening brief, and I don't take the defendants to contest that in their response brief.

[00:31:22] Speaker 00:
And finally, I want to address Judge Rossman's point earlier when I was opening about the substantiality of the over-breadth.

[00:31:29] Speaker 00:
I think, again, I want to underscore that counterman squarely holds that without a subjective state of mind, it chills too much non-threatening protected expression, does the word-for-word quote of counterman, and is on all fours with this case.

[00:31:42] Speaker 00:
But no matter how this court rules,

[00:31:43] Speaker 00:
Whether it affirms, vacates, reverses, or certifies, the court should make plain that the punishment of threats requires proof of recklessness, and the failure to include such a requirement in criminal statutes regulating expression is a constitutional defect of substantial proportions.

[00:31:59] Speaker 00:
The court should reach and reject defendants' contrary arguments, regardless of how it disposes of the case.

[00:32:05] Speaker 00:
Thank you, Your Honors.

[00:32:06] Speaker 02:
Thank you, counsel.

[00:32:08] Speaker 02:
Appreciate the arguments this morning.

[00:32:10] Speaker 02:
Very interesting case.

[00:32:13] Speaker 02:
It's helpful to have the discussion.

[00:32:16] Speaker 02:
The case will be submitted and counselors excused and the court will stand in recess subject