LAL #019 — The Dilution of Free Speech: A Troubling Conviction in Brooklyn

Law and Legitimacy

Brooklyn prosecutors rushed a prosecution to trial involving alleged “true threats” against federal officials. They did so for political reasons. That should worry everyone who cares about freedom of speech. Although the first amendment to the United States speaks in terms so clear as to defy confusion — “Congress shall make no law … abridging the freedom of speech” -- the Courts permit Congress to make such laws all the time.

One such law is a federal statute making it a crime to threaten a United States official. Perhaps such a law is necessary and good. What is neither necessary nor good, though, is a law so vague in its application that prosecutors are left with a choice about whom to prosecute and when. In the case of United States v. Brendan Hunt, federal prosecutors rushed a man to trial during a pandemic to make a political point: Violent speech against federal officials will not be tolerated. Hunt was prosecuted for four social media posts he made from December 2020 through January 8, 2021. He was acquitted for all but one comment, a comment he posted on BitChute on January 8 calling for the assassination of members of Congress. The rant is troubling, but we live in troubling times. Indeed, Black Lives Matters spokesman appeared on national news last summer threatening to “burn down the system” if they did not get what they want. No one was arrested for those comments, and they shouldn’t have been. Violent speech is as American as apple pie. Our Supreme Court permits prosecution of true threats. But the legal standard for determining what is and is not a true threat is unclear.

A speaker’s subjective intent is not the standard. Rather, the Court permits a so-called “objective,” or “reasonable person,” standard to be used to evaluate threats.

Transferring the standard for evaluating threats from the individual to the community is dangerous. It holds freedom of speech hostage to a community standard, the very thing the first amendment was intended to prevent. I am hoping that Mr. Hunt takes an appeal, and I am urging the U.S. Supreme Court to reverse this troubling conviction. I don’t want unctuous prosecutors in Brooklyn determine what I can say, and how I can say it.

--- Support this podcast: https://anchor.fm/norm-pattis/support