The Volokh Conspiracy

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Sharp Criticism + Doxing of State Narcotics Agency Isn't Punishable True Threat


From United States v. Cook, decided July 13 by Judge Michael P. Mills:

In 2018 Cook was prosecuted by the State of Mississippi for sale of a controlled substance. The case was widely publicized in the local news and public reference was made to Cook's local Calhoun County business. Cook was acquitted of all charges by a Calhoun County jury. Not content to quietly accept his victory, Cook made disparaging remarks on the internet about various players in his Calhoun County prosecution. He now finds himself defending a charge of internet harassment in Federal Court.

After his acquittal, Cook published a number of posts on his personal Facebook page about his experiences with the criminal justice system. An affidavit of Federal Bureau of Investigation Agent John Marsh specifically mentioned five Facebook posts made by Cook that Marsh believed supported a Criminal Complaint for cyberstalking. [Details moved to the end of this post. -EV]

The Indictment is a one and a half page document in which a grand jury found that Cook threatened Mississippi Bureau of Narcotics Agent Jon Lepicier by "revealing the address of, and names of family members" and "did threaten him and his family by posting:

"I uncovered the family of the arresting person. His real name, parents, grandparents, sisters, wife, nephew, properties owned, past phone numbers, aliases of the whole family, in laws, … which had him very puzzled as to how I did it. He has taken down some resources and Facebook pages or changed them. But I was nice enough to use poetry that only he would understand when posting what I knew;" and

"And God willing I'm going to take them out;"

Interestingly, when you compare the "posts" the government presented to the grand jury in the indictment, to the full posts [see below -EV], it appears that the government "cherry picked" certain statements and re-arranged them in a different sequence and context to give the posts a more ominous effect. In the preceding and intervening sentences of the post that were cut out by the government in the indictment, Cook identified no less than six other persons or entities in the post with whom he had grievances (see references to the First MBN officer on Cook's state court case, WTVA, the local elected state court judge, the ADA, the DA, and the "local meth dealer") regarding what he alleged was a fraudulent indictment scheme perpetuated by various elected government officials.

{This Court notes initially that it does not seem fair for the government to be allowed to present statements out of context to a grand jury when context is the critical issue in play. In a now famous interview, former New York State Chief Judge Sol Wachtler stated something along the lines of "a grand jury would 'indict a ham sandwich' if that's what [a prosecutor] wanted." In the same vein, it does not seem sporting for the government in this case to present evidence as a ham sandwich when all they have is baloney.}

The Court also notes that the government has not alleged that Cook ever directly contacted Mr. Lepicier, any member of Lepicier's family, or any of the other people he named in his posts via direct message, email, telephone, letter or otherwise. So, for Mr. Lepicier or any of his family members to see Cook's posts, they would have to actively search for Cook's Facebook page and scroll through his "wall" to find the actual posts….

[T]he government has not alleged that Cook ever directly contacted any of the subjects of his Facebook posts. Rather, Cook is being prosecuted solely on the content of his public posts – not the act of posting….

Cook's Facebook posts are not "true threats" precluding him from First Amendment protection. Cook's posts, when read in context, lack entirely the specificity required to bring them under the umbrella of a true threat. Nowhere in any post does Cook explicitly state that he plans to physically harm Lepicier, or any other named public official. "God willing I'm going to take them out" is not the same as telling an FBI agent you have a pistol and you will use it to kill the president or repeatedly and directly telling another person in a chat room that you were going to kill the students in your high school while making references to one of the Columbine shooters. See respectively, United States v. Howell (5th Cir. 1983); U.S. v. Morales (5th Cir. 2001)….

Additionally, none of the Fifth Circuit [true threats precedents] discuss a situation in which a person's information, such as address or family members' names, is shared publicly; a phenomenon sometimes referred to a "doxing" or "doxxing". Certainly, sharing public information, while potentially offensive and disagreeable, does not rise to the level of a true threat. {[W]hile the Court does not condone publishing publicly available personal information, like a person's address, there is simply no existing framework in the United States which criminalizes the act of "doxing" or "doxxing" private citizens ….} As such, that portion of the indictment referring to "threaten[ing Jon Lepicier] and his family by posting" must be dismissed. …

While the Court does not find it to be in good taste to post publicly available identifying records, "poems" written which vaguely reference information known about employees of public entities, or to use phrases like "and god willing I'm going to take them out," the Court recognizes that Mr. Cook does have the constitutionally protected right to say such things. When viewed in their entirety, the five posts of Mr. Cook reproduced above read to be an attempt by Mr. Cook to expose what he views to be misconduct within the Mississippi Bureau of Narcotics, the District Attorney's Office and the Calhoun County Court System.

Counsel for the defendant argues in her brief that her client's internet chatter is no more threatening than the jabberings spewed daily from the bully pulpit of the highest office in the land. Indeed, it is a measure of our times that communications on so-called "social media," traveling under brand names such as Facebook and Twitter, are often jejune and truculent, speaking in slogans, cartoons, symbols, and brief "come-aparts." Such speech, coarse as it may be, is protected….

Cook is being prosecuted for the content of his public posts. His indictment very clearly states that he is being charged because his posts "caused and would reasonably be expected to cause substantial emotional distress to a person, a spouse of that person or an immediate family member of that person." Because Cook's speech allegedly violated the statute by intentionally causing or knowingly reasonably causing emotional distress to Lepicier and/or his family specifically on Facebook, the portion of 18 U.S.C. § 2261A(2)(B) relied on in the Indictment amounts to a content-based restriction.

Since the statute as applied to Cook is content-based, the Government has the burden of showing that the content-based restriction "is necessary to service a compelling state interest." Here though, … the benefit of the content based restriction to shield sensibilities of the listener or reader is just not enough to supplant a citizen's right to uncomfortable public discourse. Here, Lepicier, his family, the local state court judge, the ADA, the DA, the local meth dealer, and the local news station all have the ability to protect their "own sensibilities simply by averting" their eyes from Cook's Facebook page, and as such § 2261A(2)(B) as applied to Cook's Facebook's posts does not survive strict scrutiny and the Indictment must be dismissed.

Here's more on the posts:

On June 27, 2019 Cook posted on his Facebook account:

I have a friend who had an issue in court. The date of her charge was changed for some reason. But she didn't have any documentation. So I asked if she took or received a lot of photos and she said yes. I asked her about the meta data and she said that her attorney said metadata can be altered. I asked if she posted photos on Facebook because they keep the photos on a "timeline" … I doubt any party could alter Facebook's timeline. . unless they could be like Superman and reverse the spinning of the earth … [that will be one heck of an "app for that!"] So my point is that a dated Facebook post of a photo could prove it was taken then or before. .so this is how she can use Facebook in court. People that have secrets are equally concerned with Facebook because of the power it gives an average joe … so socialize, enjoy, and post photos … The great equalizer is the gun but Facebook runs a close 2nd … and what you need is there … ready to be revealed … God willing …

The government alleges Cook posted the following on Facebook on August 19, 20191:

Cowards Creekmore and Mueller [presumably referring to the prosecutors in Cook's state court case] and cowardly judges. Cowardly crooked public defenders. Step down. Dixie Mafia likes to talk about making the wrong people mad. Well congratulations. You did. God gave me a good jury. Now I'm gonna give you what you have been giving my brothers and sisters … you are finished. Because I'm coming and hell is coming with me. And I'm not just quoting a movie.

The voluble Cook made two separate posts on January 21, 2020, first:

** Image appearing to be a screenshot of information found on the internet regarding Mississippi Bureau of Narcotics officer Jon Lepicier, including an address and potential aliases **

You know that moment when your undercover aliases gets listed as 'Jon Cop?'. don't worry I'm not going to put the fam on here…. that karma though …

This was followed by a post several hours later stating:

One poem then but that's it ok? Dedicated to Jamar "JP Smooth" Peterson … I'm in the class of 07 At Oak Hill Academy But that's Jonathan Lepicier Jon Davis is my name I tried to convince Casey That I'm really Jon M dad ain't Bob he's like Richard Leon I became a new guy in 2013 That's when JL hit the scene. I'm here I'm there super coll and super Fun. Don't you think Avery goes well with Jun? My folks got like 12 boats and a house in Odessa. sounds like my wife's alias kinda Without the O or the A Ol buddy you know when you stopped at my restaurant … started your lyin? I'll never forget when they told me later "I thought his name was Brian" The end

Finally, on January 23, 2020 Cook posted the following status update:

For those of you who read the stuff about my run ins with supposed law enforcers of the state of MS, I'm going to try to explain it without getting too wordy. The first MBN guy that got after me was someone I had known for a while. He had issues with substance abuse during service among many other "questionable things. He saw me playing guitar at church and formed an idea that I was dealing drugs and hookers and using church as a front. His own ideas. I found out how extremely naïve it can be to believe a badge because of the badge. But the town soaked the rumor up like a sponge. This MBN guy was removed due to his own conduct and that is where the second guy came in. He got an alias and went undercover in 2013. His name pretty much vanished from the internet. He is the one who arrested me in my bathroom. They searched my home. Didn't find any meth anywhere. Had a rubber stamp warrant with my name on it. And a copied stamp of local judge. Judge rushes a few words by me. (I had a right to a hearing which I didn't get, etc. He couldn't talk about the case). Didn't know anything about it.) .. I bonded out for $575.00, meaning they really didn't have evidence of a sale of meth but that was the charge. Of course MBN wanted to use my personal knowledge and facilities to set up others but I refused. When I got out of jail the story on WTVA news was a picture of me, a mugshot, with a history of dealing dope out of my motel, it said they had investigated me for 6 months and that I had 3.5 grams of meth on me. That's when it hit me that the guys in jail were right. I had been used as a distraction. I later found out what happened that day. July 19, 2018. Knowing there could be no evidence so no grand jury, I went to work getting after their butt while they send in more people hoping to get the evidence they had already charged and arrested and slandered by fake news without … I uncovered a Ponzi scheme indictment system, where the prosecution and many defenders across MS work together. They self indict every possible felony whether evidenced or not. The forgeries are endless and obvious to the untrained eye. They see what lawyer you have. He could be on the team. They aren't likely to dismiss because the ace in the hole is cheating in court … we caught 3 errors that would have overturned had they gotten conviction. Not to mention the arresting officer has everything he needs already. He knows his team has his back. He even signed for foreman and ADA. The DA over the whole district came to help put me away because he knew I had discovered his bottom up frivolous indictment system. (I termed it BUFI). I emailed him many times. They know it's wrong and they know getting away with murder here is easy … but Facebook gets them extremely stressed out. Just go to the courthouse and as ADA, who I refer to as TJ … he is very angry over my facebook. But it's all true and that will come to light soon enough. The rest of the scheme is … hold back discovery 8 months to a year and write continuances without consent to take asway Speedy trial right, hoping defendant will plead, which they do 100% of the time … minus one case … mine. Now for me it's war. I'm sick of the corruption in this state. Sick of the scapegoating and unsolved murders, cover ups and fake news so that the whole system is too busy covering up to do any justice elsewhere. It's a mess and the people turn a blind eye here. Those that could help remain passive. Those that can't pay just get stuck in the thing or get stuck in drug court whether they do drugs or not and those that try them, get cheated and sent off. They pay probating and restitution to the county, the arresting, the appointed lawyer and whatever else they can tack on. My own loved ones won't acknowledge my truth half the time, so I don't care what anyone thinks. I uncovered the family of the arresting person. His real name, parents, grandparents, sisters, wife, nephew, properties owned, past phone numbers, aliases of the whole family, in laws … which had him very puzzled as to how I did it. But I was nice enough to use poetry that only he would understand when posting what I knew. This guy has had affairs and paid numerous people to get something on me since early 2017, including his only witness, a real meth dealer. How ironic (sigh) … I guess carrying the torch of his brother in arms and certainly angry that I make them look like little Johnny in the 4th grade. And God willing I'm going to take them out. With or without the help of the people. So far he has been willing and all credit be to him.