A few months ago, your humble author noted that many inside and outside of government seemed to normalize prosecuting free speech by crouching real crimes not in terms of the actual criminality, but in expressions of wrongthink. Others, including those in the Trump Administration, seem outright comfortable with this nascent new normal.
This is, in a way, a Motte & Bailey fallacy run in reverse. They start with a defensible position and conflate it with an indefensible one in order to use the former to normalize the later to the point were what was lawful becomes unlawful in the eyes of many without a single change in statute or a single judges ruling.
It is in this vein, a recent press release from the U.S. Attorney’s Office, Northern District of Oklahoma, casts a disconcerting shadow on an arrest for making violent threats, specifically “five counts of Threatening to Assault and Murder Federal Law Enforcement Officers with Intent to Impede, Intimidate, Interfere, and Retaliate; and five counts of Interstate Communication with a Threat to Injure.”
True threats and incitement to immanent unlawful action are indeed criminal and some of but a handful of narrow exceptions to the otherwise broad protection of the 1st Amendment. Since the actual statements are not publicly available, or at least not readily so as of writing, there is no way for most of us to judge the guilt of the person arrested. Instead we must rely on the language of the press release and the limited reporting thereon. Specifically the press release says that the threatening and intimidating statements were about “advocating for assault and murder” [Emphasis your humble author].
Advocating for a lawless action be done by someone in the future is protected under the 1st Amendment under Brandenburg. The rest of the explanation, that “[h]e stated that federal agents need to be gunned down, shot, and executed [and that] [f]urther, Murfin encouraged people to stay armed and to kill agents when seen because the agents don’t deserve to live.” does not, per se, seem like a direct threat and only doubtfully, if one were to give the government the benefit of the doubt, be a call to immanent lawless action.
One should never give the government the benefit of the doubt.
Something can be condemnable by decent people without being prosecutable by the government.
If this turns out to be similar to what was previously noted, this it is just another case where the impetus to taunt, or even intimidate, overrode whatever propriety remained, and continued to normalize the criminalization of lawful speech.
But when the Bill of Rights, especially the 1st Amendment, is involved, the government must be expected to justify itself, to not only a judge and jury, but to the people themselves.
