Social media has exploded to the point where typical filters, such as community disapproval or castigation, are no longer barriers to people saying whatever is on their mind, no matter how ignorant or unenlightened. In prior columns I have written about the pitfalls of social media posts for law enforcement officers. Many agencies now have social media policies in place for their employees (they are behind the times if they do not). Unfortunately, some officers have found out the hard way that First Amendment protections are not absolute.
This brings me to the topic of threats against law enforcement made on social media by individuals who hate the police. Is this type of speech constitutionally protected? Does an arrest for this type of behavior lead to First Amendment violations? Those were questions recently asked to me by a reporter who was conducting a follow-up to a story about a Connecticut man who made threats against the police on Facebook.
The alleged perpetrator, a 34-year-old Norwalk man, posted on his Facebook account that the Dallas shooter was a hero and then actively called for police officers to be killed. The reporter asked, “Isn’t there a First Amendment protection for this kind of speech?” While the law would classify the comment on the Dallas shooter as protected speech — tasteless but nonetheless protected — the exhortation for others to shoot police officers was not lawful speech. However, my reply was much simpler — how would the reporter feel if this same individual made a similar threat in person to her or one of her colleagues? Would she feel threatened, would her colleagues? Once we established that there would be a clear threat susceptible to police intervention, it was an easy road to the fact that similar comments posted on someone’s Facebook page do not grant a protective cloak for otherwise criminal threats made against police officers.
In the 1969 case of Brandenburg v. Ohio, the U.S. Supreme Court set out the modern standard for inflammatory speech — such speech could not be punished unless it was directed to inciting, and is likely to incite, imminent lawless action. The decision overruled the mere advocacy test previously announced by the 1927 Court in Whitney v. California. Of course, these are the broader constitutional outlines that guide state statutes in regulating forms of expression, since there is clearly no absolute right to say whatever one wants to say (recall the famous example of Justice Oliver Wendell Holmes in Schenk v. United States (1919) that a person cannot yell “Fire!” in a crowded area when there is no such emergency).
Speech can be prohibited to the extent that it is defamatory, obscene, amounts to fighting words or advocates illegal action. Dating back to 1971, Connecticut has had a statute against such threats, section 53a-179a inciting injury to persons or property, which is a Class C felony. The pertinent part of the statute criminalizes conduct that “advocates, encourages, justifies, praises, incites or solicits…any assault upon…the police force of this or any other state or upon any officer or member thereof…” The statute goes on to cover municipal law enforcement agencies, fire departments and any other class or body of persons or individuals. According to the statute, the illegal comments can be made publicly or privately, orally or in writing. This statute has withstood constitutional challenge in the Connecticut state appellate courts and fits squarely within the type of conduct proscribed by Brandenburg v. Ohio. In addition to the inciting injury charge, authorities also charged the perpetrator with the misdemeanor offense of Breach of the Peace (“…threatens to commit any crime against another person or such other person’s property”).
The lesson here is clear: threats are illegal, whether made in person or on social media, and many states have appropriate statutes in place criminalizing such conduct. Threats against law enforcement made on social media sites are not benign, they are serious offenses and must be acted on accordingly. The law does not protect true threats and there is a wide sample of case law at the state and federal level supporting criminal arrests for these offenses. Patrol officers and detectives who may be assigned to investigate these types of cases must be familiar with the applicable state statutes which punish threatening behaviors and consult with local prosecutors before making arrests to ensure a proper arrest is being made and the appropriate charge is filed. While law enforcement has a duty to protect First Amendment rights, there is no absolute to any right. True threats, even when made against law enforcement, are outside the realm of First Amendment protection.
About the Author
Terrence P. Dwyer retired in 2007 from the New York State Police after a 22-year career. He is now an Associate Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in discipline cases, critical incidents and employment matters.