Why Teen’s Arrest for “Terror Tweet” was Unconstitutional

by Evan Bernick:

Apparently, police are not so busy with violent crimes that they don’t have the time and resources to arrest teenagers for staying stupid things on the internet.

They might want to consider using their spare time to brush up on First Amendment law. Maybe they wouldn’t have arrested a 15-year old Twitter user for exercising his constitutional rights.

To be sure, the high school old sophomore (call him “Mark”) did say something stupid. Prior to the release of the verdict in the trial of George Zimmerman, Mark tweeted, “If Zimmmerman free imma shoot everybody in Zion causing a mass homicide, and ill get away wit it just like Zimmerman.” Shortly afterwards, he deleted the tweet and backed off from his comments in the face of harsh criticism from other Twitter users. Mark’s efforts to defend himself reflect surprise about the intensity of the response. At one point, he asked, “Why you takin it serious?” in response to users who continued to attack him.

Although Mark did not take his tweet seriously, others did. Screenshots were taken, and one user, considering Mark’s comments to be a “serious terror tweet,” informed Mark that he would report it to the authorities: “The punishment that awaits you will be a serious lesson.” Eventually, officers from the Zion Police Department appeared at his home and took him to the station. He was let go after being cited for disorderly conduct.

Given the divisive nature of the Zimmerman case and the very real threat of violence in the wake of the verdict, the police were right to investigate the tweet. However, once they determined that the threat had no credibility and that he had neither weapons nor access to weapons, the police should have let the no-doubt terrified kid go with a firm warning. Instead, they let him go with a citation for disorderly conduct, which will remain on his record.

Simply put, Mark’s comments were constitutionally protected speech, and should have been treated as such. Under Brandenburg v. Ohio, speech must be directed to inciting and likely to incite imminent lawless action before the government can suppress it. There is no conceivable way that Mark’s tweet can be made to fit that description. To charge Mark with “disorderly conduct” is thus to punish him for exercising his First Amendment rights.

Mark’s arrest is part of a disturbing trend of heavy-handed police intervention in response to comments made on social media. Recently, a Texas teen was charged with making a “terroristic threat” while playing an online video game—even though he followed his statements up with “LOL” and “j/k.” Over the course of the three months he’s spent awaiting trial, he’s been viciously beaten while locked up with people who are actually dangerous and violent, and is on suicide watch.

Exactly what lesson he’ll learn from this is unclear. Certainly he won’t be educated about the scope of the First Amendment, which the Brandenburg Court found to be broad enough to protect Ku Klux Klan members who videotaped themselves loading guns and threatening to march on Washington.

If they’re going to arrest and charge teenagers with crimes whenever they say stupid things, police may not have time to do much else. They’ll also be trampling upon the constitutional rights of individuals to express themselves in ways that –the opinion of Twitter twerps notwithstanding– can’t reasonably be considered “serious.”

Evan Bernick is a Legal Associate at a DC think tank and a Legal Fellow with the Becket Fund for Religious Liberty. He blogs daily on his own website, The Benevolent Objectivist. The views expressed in this article are entirely his own.