Exceptions to First Amendment Outlined by FBI, Federal Prosecutors

Not all speech is free.

Federal prosecutors and the FBI didn’t specifically reference a recent spate of social media threats against police and their spouses that have raised questions about First Amendment protections, but they made clear in a terse, one-paragraph statement that there are exceptions:

“The FBI and the U.S. Attorney’s Offices for the Eastern and Western Districts of Michigan want to remind citizens that they uphold and support any and every individual’s constitutional right to free speech. Free speech, however, cannot be misconstrued to include directed threats toward another individual, group, or location. Once threatening speech is directed toward a specific person; a group of people, including law enforcement agencies or ethnic communities; or specific locations in a community; it can be viewed as a credible threat. Individuals who communicate threats may be subject to prosecution.”

Earlier this week, Detroit Police Chief James Craig said he was consulting federal, state and county prosecutors to determine what, if any, charges can be filed against four African-Americans from Detroit who are accused of making threats to kill white police officers.

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The Wayne County Prosecutor's Office said Thursday it had reviewed warrant request for the suspects and is reviewing.

A Livonia resident and wife of a law enforcement officer in Oakland County told police that her family was threatened in a Facebook post tagged with the Black Lives Matter hashtag after she reacted to a post critical of the Black Panthers.

Related

• 4 in Detroit Accused of Social Media Threats to Kill Police
• Cop’s Wife Reports Threat with Black Lives Matter Hashtag

The posts in both the Detroit and Livonia investigations were made days after the sniper attack last Thursday that killed five police officers as they policed a mostly peaceful Black Lives Matter rally, held in response to fatal shootings of black suspects by white police officers in Louisiana and Minnesota.

Whether charges can be filed for social media threats against police officers is largely uncharted legal ground. The U.S. Supreme Court has ruled that “true threats” are not protected speech, but how the exception applies in different circumstances is unclear. Some legal scholars say it applies in only a small range of cases.

“We are aware of it,” Detroit Police Sgt. Michael Woody told the Detroit Free Press. "It was sent to us and we have opened up an investigation on behalf of the victim, although the victim did not come forward. We are investigating it.

“Obviously, it's very troubling that anyone would feel comfortable enough to point a weapon at anyone and post it on social media for everyone to see and attacking and singling out a person ... regardless of how they identify is outrageous.”

Equality Michigan executive director Stephanie White decried the incident and the posting of the video. She told the Free Press:

“It's always disappointing and sad. We see a variety of incidents like this, but this is more hostile. Last year, we helped over 100 people all over the state who had been victims. We see the whole gamut — from a high school student in Detroit who was bullied by his principal to the murder of three trans people in 2015. I mean I'm glad the police said they were investigating and clearly there are laws against threatening people and pointing guns at people. But unfortunately, what we don't have in Michigan is hate crime laws that cover this kind of threat against LGBT people.”

Image: Ed Uthman via Flickr / Creative Commons