The Intercept, a news and commentary outlet not known for fabrication, recently published an article about four citizens of Detroit who were arrested for social media postings. None of the four have been named or formally charged.
Three of the accused – or is that even the term for a person arrested but not charged? – allegedly made posts that, on their face, appear to be legally actionable. The first was “All lives can’t matter until black lives matter. Kill all cops.” I was behind him one hundred percent until those last three words, but those last three words don’t take a particularly creative prosecutor to wangle into an incitement charge. The second was less eloquent but similar – “It’s time to wage war and shoot the police first.” Again, incitement, and pretty clearly actionable. Number three allegedly posted photos and videos of police officers being shot and said “This needs to happen more often.” Incitement. Then we get to the fourth.
The fourth referred to Micah Johnson as a “hero”, and stated that “He inspired me to do the exact same thing”. This one’s a little… less clear. Since the author isn’t commanding or even suggesting that others act, incitement doesn’t apply. A clever prosecutor could still turn this into a terroristic threat, though.
My issue isn’t with the first three being arrested for fairly unmistakable incitement, or even really with the fourth being arrested for something that might or might not be a threat. My issue is that all four of these men were arrested first and then attempts made afterward to determine if a crime took place. Two of the men have been released for now with warrants pending, the other two remain in custody due to outstanding warrants.
Police Chief James Craig said (according to this Detroit News article) that ‘it should be a crime to make threats to kill police officers’ (quote from reporter) “Especially now, in this current climate […] I don’t think that’s protected speech.” (quote from Chief Craig)
Here we see the meat of the problem. By saying it SHOULD be a crime, he’s implicitly saying it MIGHT NOT be a crime, and if it might not be a crime, why the arrests? Last I checked, in order to be arrested, a law enforcement officer needs to have a probable cause to believe that you have committed a specific crime. Even people who get pulled over for ‘driving while black’ are ticketed for a busted taillight (which just might have been busted when the officer ‘accidentally’ ‘tapped’ it with their nightstick) or ‘erratic driving’ (which is so far from a subjective judgment it’s impossible to prove or disprove) or something like that. There’s at least the appearance of an actual specific infraction.
Furthermore, I’m pretty sure deciding what is and isn’t protected speech is for a judge to decide, not a law enforcement officer. That deals with constitutional law, and that’s for high courts to decide. There’s putting the cart before the horse, and there’s setting up the cart while you wait for the horse to be born.
Here, the four men – all black men, which should surprise precisely no one – have been arrested because ‘well, we’re pretty sure that the things we say they did shouldn’t be allowed. We’re totally gonna check with the higher-ups to make sure, though. We promise.’
Sure you are. ‘Kill this cop’ – a clear and specific threat. ‘Kill all cops’ – a clear but nonspecific threat, and generally left up to a judge to determine actionability. ‘A cop died, I liked it, I was inspired to do the same’ – inspired isn’t the same as planning to. I get inspired to do a lot of things I never do. Worth keeping an eye on, sure, but arrest? And what’s next? Are the surviving members of NWA to be arrested for their hit ‘Fuck Tha Police’ because the lyrics included nonspecific threats? If so, is someone posting ‘fuck the police’ to twitter to be arrested because they are referencing the song’s lyrics? Or perhaps because the cops don’t like it and think it’s rude?
It doesn’t take a particularly creative mind to see where this leads. The back-and-forth between law enforcement and civilians has long been a story of expansion and resistance – law enforcement attempts to re-interpret laws in ways that grant them more power (and honestly, they often have the best of intentions, but we all know what they say about the road to Hell…), and they keep pushing it until the citizenry (or a higher office) pushes back and gets it in front of a judge. We’ve seen this play out time and time again from Prohibition to Jim Crow to profanity laws to speeding cameras to any number of issues where law enforcement has pushed and pushed until they get their hand slapped by a judge.
And now they’re pushing on the First Amendment. This isn’t something we can afford to spend a decade getting cranky about before we do anything – because the nature of the issue means that if we give it time for it to be clearly something we need a judge’s input on, it could well be illegal to argue.