5 Months in Jail for Anti-Semitic Tweets

When does free speech become a threat?

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Did police avert a mass shooting in the picturesque mountain town of Whitefish, Montana when they apprehended a young man following a string of disturbing social media posts? A handful of citizens and activists believe so.

"We do a lot of hand-wringing and praying and calling for action after school shootings. Here's a case where, potentially, a school shooting was averted," says Francine Roston, one of two rabbis living in Montana's Flathead Valley.

Roston believes she was a potential target of David Lenio, a 29-year-old short-order cook who moved to the area so he could snowboard the slopes. He often camped out in his van and, apparently, liked to use Twitter.

It all began on February 15, 2015, when publicist and political activist Jon Hutson began tweeting in the wake of mass shootings at a Copenhagen cafe and synagogue. Hutson noticed a series of anti-Semitic and conspiratorial tweets directed at him from a user named Psychic Dog Talk Radio. It was Lenio's account, and once Hutson dug deeper, he found that Lenio had spent the previous few days tweeting about killing Jews and fantasizing about perpetrating school shootings.

"Best way to counter the harm #jewish #policies is causing [sic] is #ChapelHillShooting styling killing of #jews till they get the hint & leave," read one such tweet. In another, Lenio complains about being a "wage slave" and says he's "not even opposed to shooting up a random school like that sandy hoax stunt only realer."

Hutson reported him to the authorities, who apprehended Lenio the next day and charged him with two felony counts: defamation and intimidation. It was the first charge that caught the attention of UCLA law professor and Washington Post blogger Eugene Volokh.

"Speech can't be suppressed because of the ideas it expresses," says Volokh. "No matter how offensive and wrong we might view those ideas to be."

Montana's defamation statute is so broad that it outlaws any speech that subjects individuals or groups, classes, or associations "to hatred, contempt, ridicule, degradation, or disgrace." The county argued that by making statements such as "The holocaust has been proven a lie," Lenio defamed all Jewish people.

Lenio's public defender challenged the law as overly broad, pointing out that if one can defame a "group, class, or association" regardless of size, that almost any statement that a person finds offensive could be deemed illegal.

"It could be people named 'John,' it could be public defense attorneys… Any group, any size," says Getty, who also challenged the statute's legality on the basis that it doesn't require the defamation to occur "with malice."

The judge agreed with Getty's argument and ruled the statute "overly broad." After five months awaiting trial in jail, Lenio walked free and now lives with his parents in Michigan while he awaits his trial for the 2nd charge of intimidation, or making threats. Roston believes that the judge made the right choice in protecting Lenio's free speech in her ruling against the defamation statute but believes that the state much convict Lenio for the safety of the community.

"If this speech is not defined as threatening, then we're in danger," says Roston, who points out that Lenio had retrieved some guns from a storage locker in the days preceding the tweets.

But Getty believes that Lenio's Twitter posts, which just as easily could have washed away into the ocean of online vitriol had Hutson not noticed it, were simply the juvenile rantings of a frustrated young man and points out that they were not directed at a specific target.

"It'd be the equivalent of, back in colonial days, someone yelling on the street corner," says Getty. "And that's the biggest problem with the state's case, that these are not directed at a specific person."

For deeper look at this case and its implications for free speech in the social media age, watch the Reason TV video above, and check out Elizabeth Nolan Brown's previous coverage.

Approximately 7:37. Produced by Zach Weissmueller. Field producers are Paul Detrick and Alex Manning. Additioinal camera by Alexis Garcia. Music by Chris Zabriskie and Lee Rosevere. Additional photography provided by Greg Lindstrom and the Flathead Beacon.

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