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.

Comments

[Brett Bellmore]

Having been doxed, I'm convinced that it ought at least get you halfway to true threat: The purpose, after all, is to make you vulnerable to anybody who might have it in for you, and doxing IS frequently followed up by physical actions in the real world. Just not necessarily by the person doing the doxing.

[apedad]

So where is the line that makes doxing a criminal act or maybe a civil tort act?

And should the line be different for private persons vs. public persons (like the blog above)?

[Brett Bellmore]

Well, I suppose the question would be, is there any legitimate purpose for telling people where a cop lives? Who's related to him, and where they live?

Does it genuinely serve any purpose at all besides rendering them vulnerable to retaliation?

I think it's pretty clear that the purpose of doxing, basically the only purpose, is to intimidate people by rendering them vulnerable to attack in their private lives.

So, I guess I'd say it stands in the same relation to true threats as assault stands to battery. To use a rough analogy. It's intended to create justified fear of being attacked.

[Brett Bellmore]

This doesn't, of course, imply that it's illegal to do it under existing law. In case that didn't go without saying.

That's why I said, it gets you halfway to a true threat. Not all the way. But it should be taken as lowering the threshold on anything else you say that's threatening.

[Dilan Esper]

I don't really know how the law should handle doxing, but I agree with you that whether there's some purpose that's unrelated to harassment is potentially a key fact in these cases. Because it seems to me that a lot of what is going on is people arguing that because someone else might use the information for a legitimate purpose, harassment is fair game. And while those sorts of overbreadth third party standing arguments are very important in the context of core First Amendment expression, I am not at all sure this is core First Amendment expression.

[TwelveInchPianist]

One problem with online harassment is that it can be a legit matter of opinion who is harassing who. A guy in Canada was prosecuted (and kept off the internet for 3 years) after a twitter spat with some feminists, but they were arguably harassing him just as much.

[rsteinmetz]

One legitimate purpose could be to expose corruption, graft and incompetence.

Listing aliases used could help others avoid entrapment in a corrupt legal system.

[Brett Bellmore]

Sure, aliases are fair game. The names of your friends and relatives?

No, this sort of thing is done to intimidate and enable anybody who has it in for you to know which window to throw a brick through.

[Commenter_XY]

I dunno Brett. Is it doxxing when a university president makes a decision inimical to student's interests, and students post his office phone number on a comment board, and invite the public to call and express their opinion?

I think it is important to make a distinction between public and private persona.

[Brett Bellmore]

I think we can distinguish between providing an office phone number, and providing your street address and the school your kids attend to anybody who might have it in for you.

"I know where your child goes to school", if not a true threat, is at least true threat adjacent.

[AuspiciousOptimism]

For me, it seems that most "doxxing" merely involves the RE-posting of information already available to the public. If anything is disturbing, it is that such information is so easily available, but I digress.

Surely then, this issue really falls under the same scrutiny of any speech - is there incitement included in the otherwise, already publicly posted information.

[Commenter_XY]

Well, then posting the addresses of federal judges, based from their property tax record is fair game, isn't it?

[Brett Bellmore]

I'll agree that there's too much such information publicly available, or, what amounts to the same thing, it's become too easy to find and disseminate. But that wouldn't be such a big problem if doxing culture hadn't become such a thing, the widespread, (If not majority) belief that it's actually appropriate to go after somebody's private life if you don't like them or an opinion they express.

[NToJ]

What about revenge doxxing? Like if somebody is sending you dick pics and you tell their wife/mother, or if some lunatic is online harassing your children during work hours, so you inform their employer.

[Dilan Esper]

The other change is that while lots of information was always publicly available, you had to work to get it. So if someone wanted to harass Brett Bellmore, that person had to search physical property records and similar sorts of stuff, or hire an investigator, to do it. It carried a significant cost and time element, which was a big deterrent.

The information superhighway has made it EASY to harass people. And that's a bad thing.

[TwelveInchPianist]

It used to be that most people's names and addresses were available in the phone book. Personal info gets published all the time, the problem with "doxxing" is that it's an "I know it when I see it" type of thing, hard to regulate without sweeping in alot of innocent and protected activity.

[Dilan Esper]

Where I grew up, most people had unlisted numbers. Maybe that was a product of being in a city that was very close to the entertainment industry.

[Rossami]

The problem is that this isn't doxxing. (Or if it is, the definition of doxxing has been stretched beyond reason.)

Doxxing is the release of identifying information that outs a person who is trying to stay pseudonymous. Figuring out and publishing the real name behind user ID "Rossami" or "Brett Bellmore" would be doxxing. Publishing identifying details of someone who is already public, however, is not. "Donald Trump lives at 4000 Pennsylvania Ave" is not doxxing no matter what my motivation for publishing that fact.

The information described in the article above is all publicly available information. It's in the wild and it's connected only to the already-known identities of the individuals involved. You can't call that information back and try to demonize it as "doxxing" just because the person also says mean things about you.

Now, I will concede that publishing non-public information could be "doxxing". Someone's unlisted phone number might count. But if all that was published were already-public data elements, you might not like it but it's not and should never be illegal.

[Brett Bellmore]

Seriously, by your definition outing the real name behind "Brett Bellmore" wouldn't be doxing. I'm Brett Bellmore. Mind, I'm not the only "Brett Bellmore", but there aren't many of us.

I got started online before anonymity became a common thing. By the time it became evident that commenting under a pseudonym might have been a smart move, I had enough of a track record that switching to it would have been an exercise in futility. Come the revolution, I WILL be up against that wall, and shutting up now wouldn't save me.

But I've still had people, who WERE operating from burner accounts, track down my home address and employer, and try to get me fired. I've had commentators drop little tidbits about my private life into online arguments, where they had no relevance at all to what was being discussed, just as an exercise in intimidation.

Your definition is too narrow, given how much information is public. There's "public, if you put enough work into finding it", and there's "widely known". If you reveal somebody's address, phone number, work place, where their child goes to school, even if these are all in some sense public information, and they have no relevance to the topic at hand, ("You're talking about your life in a mixed race neighborhood. Liar, you live in Montana!") you're doxing, as it is generally understood.

[Dilan Esper]

But I’ve still had people, who WERE operating from burner accounts, track down my home address and employer, and try to get me fired.

I've experienced this too, and really, there are few people in this life who I have a worse opinion of than the folks who tried this. And it's scary to me that there are people out there who even think this is OK to do.

[Brett Bellmore]

If you think it's scary that they'll do this when all they can do is ask for you to be fired, wait until people like that end up in power. These people compile lists of folks to go after when they get the chance. They're actually talking about "truth and reconciliation commissions" after the election, where maybe you won't be prosecuted if you confess, just driven from polite society.

I'm not joking when I say that, come the revolution, I'm going to be up against a wall. I've been on lists for decades.

[subpatre]

Hold on Brett! This is a person who was subjected --or at least claims that, with jury backing-- to a 'truth and reconciliation commission'. Arrested, jailed until bonded, then lost a year of his life as the wheels of justice crawled along, and the wheels deliberately slowed to extend the process. The process is a punishment with no apparent recourse. So first you have to look at this part and decide whether Cook's later acts are motivated legitimately. Maybe reforming qualified immunity fixes this in the future, but doesn't help this guy at this time.

[Bored Lawyer]

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.

Not "sporting." Is that supposed to be judicial understatement, or protecting the prosecutors?

How about, misleading the jury in an attempt to deprive the Defendant of his Fifth Amendment right to be indicted by a jury? How about misconduct, which should be referred to the bar for discipline?

[Martinned]

That's pretty much what I was thinking too. This case does not seem to be clarifying the law very much because there's too much prosecutorial misconduct to muddy the waters.

[Noscitur a sociis]

What is the prosecutorial misconduct you perceive here, and how does it "muddy the waters" of the legal analysis?

[Bored Lawyer]

I don't know whether it muddies the legal waters, but there is definitely misconduct here. The Government presented cherry-picked portions of the Facebook posts that formed the basis of the indictment, rearranged them, and presented them out of context. All this in a case where there are obvious First Amendment limitations on what the Government can charge.

Take a classic case, taught to schoolchildren, of how a slight difference can completely change the meaning. I have dinner ready, and I say, "Let's eat, grandma." Take out the comma, and it becomes "Let's eat grandma," an invitation to cannibalism, and murder if grandma is currently alive.

Do you think that if the government presented that statement to the grand jury in an attempt to obtain an indictment for attempted murder, and deliberately left off the comma in its quotation, that such would not be prosecutorial misconduct?

[Noscitur a sociis]

I would certainly agree that deliberately presenting false or misleading evidence would be prosecutorial misconduct. I am less clear on what leads to conclude that that actually happened in this case. Ditto Martinned, if that's the basis for their allegation as well.

[ReaderY]

This comment is about as scathing as they come, and if I were a defense lawyer I wouldn’t be too unhappy with an outcome like that.

I’m going to have to remember this one. It’s good.

[rsteinmetz]

That is assuming any of it is true.

[Bored Lawyer]

What do you think is not true? The judge says:

Interestingly, when you compare the "posts" the government presented to the grand jury in the indictment, to the full posts . . . 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.

The judge had both the original Facebook posts and the Government's presentation to the grand jury to compare. So what is not true?

[Noscitur a sociis]

What's your basis for saying that? A federal judge wouldn't typically have access to "the Government’s presentation to the grand jury" and I don't see anything on the docket that would suggest something different happened in this case.

[Bored Lawyer]

Did you read the sentence I quoted from the Judge's opinion? He starts off "Interestingly, when you compare the 'posts' the government presented to the grand jury in the indictment, to the full posts." He said he compared both.

How he got it, and whether that is unusual, I don't know.

[Noscitur a sociis]

Ironically, you seem to be reading this quotation out of context: it seems pretty clear that the judge is talking about how the posts are quoted in the indictment, not how they were presented to the grand jury. In addition to being illegal, there's no obvious way that it would have been possible for the judge to access the grand jury records, since they're maintained by the US attorney's office and not the court.

[Bored Lawyer]

I reread the opinion. The judge is making an inference from what is quoted in the indictment to what was shown to the grand jury. In a footnote (quoted above) he says: "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."

This is a good inference, IMO. I very much doubt the grand jury saw the whole of the Facebook quotes, and then paraphrased them in the indictment. The indictment is generally drafted by the prosecutor.

So, yes, the judge probably did not review the grand jury transcript himself, but he did review the indictment, and inferred what the grand jury saw and heard.

[TwelveInchPianist]

"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..."

How shitty and clueless a judge do you have to be to think that being prosecuted and acquitted is a victory?

[Brett Bellmore]

Typically it's just a lesser defeat.