Whether threats to reputational harm fall within the ambit of the Hobbs Act, 18 U.S.C. § 1951

QUESTION PRESENTED In a 2-1 memorandum disposition, the court of appeals resolved an important issue of first impression: whether threats to reputational harm fall within the ambit of the Hobbs Act, 18 U.S.C. § 1951. Petitioner contended that a specific statute, 18 U.S.C. § 875(d), proscribes extortionate threats to reputation, and contains a maximum penalty of two-years imprisonment. He further contended that, in contrast, the harsher and more general Hobbs Act, 18 U.S.C. § 1951, which prescribes a penalty of up to 20 years imprisonment, did not extend to threats to reputational harm. The panel majority rejected Petitioner’s claim. In so ruling, it neither applied the statutory canon “that a specific statute controls over a general one[,]” Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961), nor addressed this Court’s recent cases restricting the breadth of the Hobbs Act. See Scheidler v. Nat’l Org. for Women, Inc. (NOW ID), 537 U.S. 393, 409 (2003); Scheidler v. Nat’l Org. for Women, Inc. (NOW IID), 547 U.S. 9, 11 (2006). It instead relied on a different statute—the Travel Act—to find that the Hobbs Act did not contain a narrower definition of extortion. Importantly, this Court distinguished extortion under the Hobbs Act from extortion under the Travel Act in United States v. Nardello, 393 U.S. 286, 296 (1969). i Judge Reinhardt “strongly disagree[d] with the majority disposition regarding the scope of Hobbs Act extortion.” His separate opinion presented the better of the arguments, including his determination that the conduct at issue here should be cabined by the specific statute, and that the rule of lenity compelled the narrow construction of the Hobbs Act as urged by Brank. Or as Judge Kozinski noted at oral argument:! 1951, it makes perfect sense that it wouldn’t include reputation because ‘force, violence, fear, or under color of official right.’ These are all things seeming to deal with physical kinds of threats. Why, if you look at the two statutes say, well they discussed here, things, threats in the real world, rather than things having to do with mental distress... Or explaining why one includes reputation and one doesn’t. Because 875 talks about transmitting communications. And that, you can harm reputation with. It is much harder to beat up somebody’s reputation. It’s much more difficult, impossible to use force against somebody’s reputation. The question presented is: Does Hobbs Act extortion encompass threats to reputation, as opposed to threats of physical injury or economic harm, as suggested strongly by the statute’s text and in comparison to 18 U.S.C. § 875(d)? 1754 at 20:53-21:25 & 21:35-22:09. Following submission of this case, Judge Kozinski retired and Judge Hurwitz replaced him on the court of appeals’ panel. ii