Yet another arrest has resulted from intemperate, but not specifically threatening, anti-authoritarian scribblings on Facebook. In a case evoking the brief detention of former marine Brandon Raub, who was later released by a quite annoyed judge, Matthew Michael, of Indiana, faces charges of transmitting threats in interstate comments for fiery Facebook posts that "were directed at natural persons, namely DEA agents, law enforcement officers, and government personnel."
Michael is accused of writing a series of posts in August 2011 (and creating a "statewide" Facebook event scheduled for November 2011) containing vague but angry and violent statements regarding DEA agents. One alleged post: "War is near..anarchy and justice will be sought…I'll kill whoever I deem to be in the way of harmony to the human race…BE WARNED IF U PULL ME OVER!!"
Eloquent, that is not. But is there enough here to support U.S. District Judge William Lawrence's dismissive treatment of Michael's motion for a not-guilty verdict?:
It would be inappropriate for the court to enter a verdict of not guilty based solely on the face of the indictment unless the court could imagine no facts that would render Michael's posts unprotected. That is not the situation here.
The standard in such cases is generally taken to be Brandenburg v. Ohio, in which the U.S. Supreme Court ruled:
[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Matthew Michael's social-media steam-venting wouldn't seem to rise to Brandenburg's level of gun-brandishing Klansmen rallying to bluster violence against that broad swathe of the population of which they disapproved, Neither, by any means, did Brandon Raub's broad condemnation of the establishment and the government. You'd think, then, that Michael would enjoy protection for his speech. Then again, the Klansmen threatened mere civilians, not federal officials.
It's obvious that officialdom is paying attention to what appears on Facebook, Twitter and other means of very rapid communications with a great many other people. Soap boxes and audiences have moved online, and the powers-that-be are testing the limits of what they have to tolerate in the new town square.