Are Anti-Cop “Hate Speech” Arrests Illegal? All Signs Point To Maybe

July 14, 2016 (Fault Lines) — Tensions are at an all time high between law enforcement and the citizens with whom they interact. Cops are so tense, they’ve taken to Facebook telling kids it’s not a good idea to play cellphone games anywhere near a police station. One online activity police won’t tolerate these days is threats, real or perceived. They’ll just arrest you for a nasty Facebook post and sort the details out later, as six men discovered last week.

Six arrests in four days, spanning three cities, illustrates just how little police think before obtaining an arrest warrant for statements posted to Facebook. In Norwalk, Connecticut, 34-year-old Kurt Vanzuuk was arrested for lauding slain Dallas shooter Micah Xavier Johnson as a “hero” and allegedly calling for more officers to be killed. In Racine, Byron Cowan’s family is scrambling to meet a $75,000 bond after the 43-year-old man called for every black person in America to arm themselves, declared us at war, and told white police officers “to kiss there (sic) loved ones goodbye.” Four Facebook tough guys in Detroit got arrested right after the Dallas shootings, one for nothing more than posting “pictures and videos of police being shot” to his Facebook wall and saying, “this needs to happen more often.”

It’s quite clear prosecutors want to see some sort of judicial decision on this. Racine County District Attorney Rich Chiapete thinks we should construe any sort of horrible social media post against law enforcement, no matter the circumstances, as a threat.

“In the current climate that we have in this country,” Chiapete said, “each and every one of these threats needs to be treated as a serious, real and credible threat. There is no place for this at all. The allegations contained in these posts is sickening.”

Detroit Police Chief James Craig doesn’t care if the law is murky on the subject. He’s got to protect his cops, and will appeal to any authority he can muster to make sure people who spew anti-cop rhetoric on social media are charged with a crime.

“Social media is new territory, and while it’s been established that hate speech is protected by the First Amendment, we’re talking about people specifically saying on Facebook they want to kill white police officers,” said Craig, who said the Police Department’s counter-terrorism unit saw the alleged threats while monitoring social media. “If someone threatens to kill the president, that person would be arrested and prosecuted. How is it any different when someone threatens to kill white cops?”* “I know this is a new issue, but I want these people charged with crimes,” Craig said of the four men arrested.

The law is murky, and in the weeds, because when a jilted ex-husband named Anthony Elonis landed before nine unelected lawyers in the nation’s highest court over scary Facebook posts he intended as “rap lyrics,” the High Court simply punted on the issue of “subjective intent,” or how the person viewing the threat would reasonably interpret it as an intent to do them harm.

Elonis, under the pseudonym “Tone Dougie,” negligently posted threatening statements about harming his ex-wife and law enforcement on Facebook. At one point, he even posted “rap lyrics” about shooting up a school. The Supremes overturned his conviction for violating 18 U.S.C. § 875(c), holding that while Elonis might have been negligent in penning his lyrics on Facebook, negligence wasn’t enough of a mental state to constitute a federal crime. They also refused to tell Elonis or the Feds exactly what more the Government needed to show with regard to intent under the Interstate Communications statute to create a threat.

We may be “capable of deciding the recklessness issue,” post, at 2 (opinion of ALITO, J.), but following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly.

Chief Justice Roberts is about to get help, if Fault Lines contributor Ken White’s crystal ball was clear slightly over a year ago. Federal and state defendants are going to start raising Elonis and demanding that “true threat” statutes provide for at least some form of subjective intent. It’s easy to say posting a Facebook status about Micah Xavier Johnson being an “inspiration” is negligent and incredibly stupid. Whether that statement crosses into an actual, credible threat against law enforcement is another matter entirely. If Wisconsin, Connecticut, and Michigan courts all come up with different decisions, the Supremes might regret their “prudence” from last June’s opinion.

Social media is a breeding ground for cat pictures and stupidity. If you’ve got at least one friend with the mentality of a twelve-year-old who owns a connected device, they’ve probably posted some insanely asinine statement to Facebook that’s anti-cop. Because we’re in a world where a person’s profession is now considered in at least one state a protected class worthy of a “hate crime” enhancement, expect more arrests over anti-cop “hate speech” made on the internet until this gets sorted out through the courts. Unfortunately for the six men arrested in the wake of last week’s shootings, that could be a very long time.

*Just in case Detroit Police Chief Craig is reading this, the Supremes cleared up the issue about people threatening to kill the President way before Facebook was a thing.

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