A Court of Appeals Confirms: The First Amendment Protects Hate Speech And Expressive Acts By Irredeemable Jerks

1. Good!

2. Why don’t they train police to understand that so cases like this aren’t necessary?

Artemas Buford Johnson was arrested when he drove past a Seattle Police Department officer, shouted “Fuck the police!” and then made a shooting gesture using his fingers.  In its decision in State v. Buford-Johnson, yesterday, a unanimous ruling by the Washington Court of Appeals with Judge Lori Smith joined by Judge Bill Bowman and Acting Chief Judge Beth Andrus held that the arrest was unconstitutional.

Of course it was. The opinion stated in part,

We use an objective test to identify whether speech is a true threat: “‘[a] true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted … as a serious expression of intention to inflict bodily harm.'” “A true threat is a serious threat, not one said in jest, idle talk, or political argument.”

“[T]he nature of a threat depends on all the facts and circumstances, and it is not proper to limit the inquiry to a literal translation of the words spoken.” “[I]t is not just the words and phrasing of the alleged threat that matter, but also the larger context in which the words were uttered, including the identity of the speaker, the composition of the audience, the medium used to communicate the alleged threat, and the greater environment in which the alleged threat was made.” …

Here, we conclude that the evidence does not establish that Johnson made a true threat…. Johnson’s statement did not itself express any intention to cause harm, but instead was a generalized and political statement of animosity. We have noted that “criticism, commentary, and even political hyperbole towards and about public servants” is political speech that “is at the core of First Amendment protection ‘no matter how vehement, caustic[,] and sometimes unpleasantly sharp.” …

Johnson also pointed at Officer Zerr as if he had a firearm, expressive conduct that does imply violence. [But] the circumstances here do not convince us that Johnson’s speech and conduct together constituted a true threat. Johnson did not stop or approach Officer Zerr, but instead continued driving north throughout the interaction. Furthermore, Johnson kept his arm hanging out of the window of the car as he continued to drive, and then immediately stopped at a red light. These facts are more suggestive of a casual encounter or idle talk than a serious threat….

The record establishes that Officer Zerr …thought he had seen an object that might be a firearm. Officer Zerr then “quickly moved into the shadows and behind a telephone pole, fearing the pointed object might be a firearm.” Considering these circumstances, a reasonable fact finder could conclude that Johnson’s conduct placed Officer Zerr in reasonable fear of bodily harm.

However, the fact that Officer Zerr was afraid is not determinative: the true threat inquiry asks whether there is sufficient evidence that a person in Johnson’s position would “‘foresee that [his] statement would be interpreted … as a serious expression of intention to inflict bodily harm.'” Here, Officer Zerr was afraid because he thought he might have seen a firearm, but Johnson did not have a firearm and there is no suggestion that he should have anticipated that Officer Zerr would think he had one. Therefore, the fact that Officer Zerr was afraid does not indicate that Johnson’s conduct rose to the level of a true threat.

This case, from Pennsylvania, reached the opposite conclusion, but the reasons why should be apparent.

BUT… what if Officer Zerr, who was out alone, at night, and it was dark, experienced the unprovoked same assholish conduct from Artemis Johnson, but instead of driving past, the driver stopped his car and made a shooting gesture? If Zerr had shot Johnson dead, what would have happened to the officer if, as I suspect, Johnson was black and Zerr is white?

Is there any doubt? Yet Johnson would have been 100% responsible for his fate.

3 thoughts on “A Court of Appeals Confirms: The First Amendment Protects Hate Speech And Expressive Acts By Irredeemable Jerks

  1. These charges, often, are brought in the hope that they will draw a judge favorable to an unconstitutional argument. Too often, their hopes are realized, but it’s nice to see that they were dashed asunder in this case.

    Is there any doubt? Yet Johnson would have been 100% responsible for his fate.

    Personal responsibility for one’s actions? Heh. Primitive concept — practically antebellum.

  2. “If Zerr had shot Johnson dead, what would have happened to the officer if, as I suspect, Johnson was black and Zerr is white?”

    To ask that question is to answer it. Zerr would be on the news, off the force, and probably facing criminal charges. These days it may be healthier physically to react, but it’s a lot healthier career-wise and financially to hold your fire. Some choice. Get shot and leave your wife a widow and your kid an orphan, or open fire, and leave them destitute while you go to prison.

    • I spent a bit of time trying to figure out the race of either person involved and came back with nothing. Never mentioned once in an article, picture, or court filing.

      The lack of a racial angle mentioned, particularly from the defense filings, signals to me that there probably wasn’t a racial angle involved. Let’s go one step further: I think it’s likely that any situation where Johnson was black would have some kind of racial angle, because even if the officer was also black it seems like the pattern is to talk about systemic abuses, or the record the police have (real or assumed) with black defendants, so if I were a betting man, I’d bet that Johnson was white.

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