NEW YORK/WASHINGTON – The point-blank killing of two New York policemen and protests against the use of excessive force by officers have raised the question of whether people can be prosecuted for words of violence directed at police in social media and on the streets.
Compared with other countries, the United States has a strong guarantee of speech rights even when the words display racism, hatred or violence. State laws, though, generally make it a crime to communicate a specific threat against a police officer or anyone else.
So despite the federal speech guarantees, prosecutors have won convictions for threats against officers.
Generally, a threat “has to have some degree of specificity of who is going to be attacked, or what place is going to be attacked, or some other detail along those lines,” said Eugene Volokh, a UCLA law professor.
A gunman, identified by police as Ismaaiyl Brinsley, on Saturday ambushed two New York City police officers while they were sitting in their patrol car in Brooklyn. Authorities said Brinsley’s posts on Instagram, a mobile photo-sharing application, indicated he had been motivated by the deaths of unarmed black men Michael Brown and Eric Garner at the hands of white police officers.
Shortly before the shootings, Brinsley wrote: “I’m putting wings on pigs today.”
Three days later, police in Chicopee, Massachusetts, said they had filed a criminal complaint against a man for posting the words “put wings on pigs” on his Facebook page.
Legal experts said a conviction was unlikely in the Chicopee case unless the threat had some specificity to it and there are several examples over the past few years.
A state judge in Pennsylvania this year sentenced two men to prison after they were found guilty of making threats in a rap video on YouTube. According to the Pittsburg Post-Gazette, the video threatened two officers who were involved in arresting the men months earlier and referenced a man who was convicted of killing police officers in 2009.
In 2007, an Ohio man was charged with threatening officers’ personal lives. The man had already been charged with impersonating a police officer during a bar fight, and in a 47-minute recorded phone call, he told the police chief that he was retaliating by investigating officers’ bankruptcy files and housing records.
“You’re screwing with my life, so I’m screwing with yours,” he said on the call, according to court records. The man was convicted of retaliation by threats.
In Connecticut, a man was once charged after he pulled his car up alongside a jogging, off-duty police officer and told him, “I’ll kick your ass.” They had met previously. The man was convicted of breaching the peace, a category that includes threats to commit a crime, and in 2003 the Connecticut Supreme Court affirmed the conviction.
Context matters in threat cases, so much so that in 2003, the U.S. Supreme Court ruled that burning a cross was protected speech if done in an open field and not intended to intimidate a specific person, but potentially a crime if done before the home of an African-American family. The white supremacist group known as the Ku Klux Klan has used cross burnings as a tool of intimidation.
The high court on Dec. 1 revisited the law of threats to consider another question: Must prosecutors show that a person intended to threaten, or is it enough to show merely that a reasonable person would have felt threatened?
States are not uniform on that standard, and a ruling in the case is expected by the end of June.