Freedom of speech is being threated this week by a criminal prosecution brought by the State of Michigan against Nheru Littleton, a Detroit man being charged with making a “terroristic threat” for statements he posted on Facebook last year in the tense period following the fatal police shootings of Alton Sterling and Philando Castile and the subsequent attack on Dallas officers during a protest there. If convicted, Littleton could face up to 20 years in prison, simply for posting his opinion online. The ACLU of Michigan has filed a friend-of-the-court brief in the case urging the court to dismiss criminal charges that are based solely on Mr. Littleton’s Facebook posts.
Reacting to the violence and protests occurring around the country, Littleton, no doubt frustrated and enraged, spoke out on Facebook by posting, “All lives can’t matter until Black Lives matter!!! Kill all white cops!!!” Although such statements are unquestionably offensive and disturbing, Littleton did nothing to act on them and there is no evidence he ever intended to. He did not choose to vent his frustration with violent action in the streets, he chose to so with his words in a public forum. Like thousands of posts that make it onto Facebook every single day, Littleton’s statement is an impulsive, highly charged, rhetorical expression of anger about what he perceived to be an egregious and tragic injustice in our society.
So why is Littleton being charged with a crime? Under the First Amendment, he cannot be punished for his speech unless it falls into the narrow class of historically unprotected speech known as the “true threat” exception. As explained in the ACLU’s brief, speech is not a “true threat” simply because it is crude or offensive hyperbole. When placed in their proper context, statements uttered in the broader context of contentious political debate and that constitute no more than an abstract advocacy of violent insurrection or mayhem are still protected by the First Amendment. Likewise, speech is not a “true threat” in situations where the speaker does not communicate any intent to actually commit a violent act and does not specify any particular individual or group of individuals to be targeted, nor when, how, or by whom they would be harmed. Additionally, statements are unlikely to be “true threats” when made in a “public arena” such as Facebook, which is known for hosting heated political discussions, as opposed to a private communication or face-to-face confrontation.
In fact, controversial speech addressing a public issue or criticizing how the state exercises its power warrants special protection under the First Amendment. Courts have long recognized that one of the highest purposes of the freedom of speech is to invite dispute, sometimes by way of inducing unrest through unpopular statements, and especially when that speech is in opposition to the state. This special protection makes sense, because political speech – and speech advocating political change – lies at the core of the First Amendment. And though sometimes speech in a highly charged political context can become impassioned, agitated, and downright scary, it is important to broadly protect all speech, so as to avoid creating conditions that subtly or explicitly discourage individuals from speaking out and expressing what, to some, are radical ideas.
Given the tense atmosphere surrounding race and police shootings last summer, it is understandable that police and prosecutors who became aware of Littleton’s Facebook posts were angered and disturbed by what they read. Even outside of law enforcement, many people will undoubtedly find Littleton’s speech outrageous and offensive. But this does not change the fact that his speech must be recognized as protected by the First Amendment. Police and prosecutors cannot be the arbiters of what speech is allowed and what speech is prohibited, especially when it comes to citizens speaking out on controversial issues like racialized police violence. If the government has discretion to punish speech it doesn’t like, none of us truly enjoys the freedom of speech.
Protecting crude and upsetting speech is an essential component of democracy. Part of the import of our ability to hear different opinions, even extreme ones at ends with the status quo, is the realization that the bad things that some people say can still contribute to larger good when we work to understand why people feel the need to make those statements. Although the Facebook posts at issue in this case were overheated and arguably not conducive to a constructive dialogue, the fact of the matter is that Littleton was angry for a reason. Many people are. Rather than criminalize his speech, in violation of the First Amendment, we as a society would do well to work to identify the deep-seated social problems that led him to say what he did, and work to ameliorate the disproportionate use of force against people of color. We don’t have to like what Littleton said. But protecting his right to say what he did is an essential part of a process that can work to fix the injustice that made him angry enough to say it.