Political speech or illegal threat? It may depend on the political leanings of the jurors
Criminal trials involving political speech can have two very different outcomes depending on where they take place.
A jury in New York, for example, might view online threats against particular members of Congress very differently from jurors in rural Texas. And that’s exactly what happened in two recent federal lawsuits pitting free speech against safety and security.
On May 3, a Wichita Falls jury acquitted a 28-year-old man charged with making threats against Congressional Democrats on Facebook – a rare result in federal court. The jury deliberated for just 18 minutes before finding Gavin Weslee Perry not guilty of a single count of transmitting a threatening communication in interstate commerce.
His trial, in the conservative and largely Republican county, about two hours northwest of Dallas, lasted less than a day.
Days earlier, a federal jury in Brooklyn found Brendan Hunt guilty of threatening House Speaker Nancy Pelosi and other Congressional Democrats. Hunt, 37, of Queens, posted a video in January calling for the “slaughter” of members of Congress before Joe Biden’s inauguration. Hunt added that he would shoot them and kill them himself if he could find a gun.
Party membership is only one factor in the outcome of trials involving politically motivated speeches, but a strong factor, according to legal experts. Nonetheless, lawyers, when choosing a jury, should also consider other influences such as attitudes towards free speech and the role of government, according to jury consultants.
“I don’t know if it was politics, but they didn’t determine it was a serious threat,” Perry’s defense attorney Frank Trotter said.
Trotter said his client did not testify and that he did not call any defense witnesses. Perry, he said, never denied making the comments on Facebook. Their defense, he said, was that “it was just political hyperbole, not a threat.” Trotter said his client made the comments as part of a Facebook policy thread.
He called it a case of Perry wanting to “outdo” another commentator.
Perry, a former Fort Worth resident, felt vindicated after the verdict, Trotter said, as he had insisted from the start that he was only exercising his free speech rights.
The U.S. prosecutor’s office in Dallas declined to comment on the outcome.
Rants or threats?
Freedom of expression is not absolute. Courts have ruled, for example, that fraud, obscenity, incitement to violence, perjury, defamation and threats are not entitled to constitutional protection. But interpreting the intent behind the words can be tricky and ultimately is up to individual juries to decide based on the evidence in each case.
The government had made several plea offers to Perry, which included a sentence for the time he had already served behind bars, but he wanted to go to trial, Trotter said. Perry did not specifically threaten to harm the Speaker of the House. Rather, he accused her of being part of a cult – a popular but unsubstantiated conspiracy theory making the rounds online.
“Nancy Pelosi is part of a satanic cult, just like the people who work closely with her,” Perry wrote on Facebook. “The establishment’s dems will be deleted at any necessary cost and yes that means by death.”
His other Facebook comment in question did not identify a specific person for the violence. Trotter said it was a key fact that he said worked in his client’s favor.
“If you are a dem or part of the establishment on the Democratic side, I consider you a criminal and a terrorist and I advise everyone to go SOS [shoot on sight] and use live ammunition, ”Perry wrote in March 2020.“ Shoot to kill. It is a revolution. “
There was no claim that Perry was a member or supporter of extremist groups like the Proud Boys or Oath Keepers. And Trotter said his client did not own a car or a gun and could not have made it to Washington DC or the Pelosi district office in San Francisco.
Prosecutors, however, did not have to prove that Perry intended to carry out the threats.
According to the jury’s instructions in the case, prosecutors had to prove that the accused sent the message with the intention of communicating a real threat or “with the knowledge that he would be considered a real threat.” This means a real threat and not a joke, “gossip” or “reckless remark,” according to court records.
And the threats should make a “reasonable person” fear harming, according to records. Trotter said his client did not threaten Pelosi but claimed she was a member of a satanic cult.
In the New York case, Hunt’s attorneys also argued that their client had not been caught with weapons or had no intention of committing violence and was only declaiming online, according to reports. published reports. They argued during the trial that his comments were political opinions.
But the Brooklyn jury concluded otherwise. Jurors did not find all of Hunt’s comments in the indictment, however, to constitute unlawful threats; neither were they required to do so. One was enough to condemn.
Hunt’s December 6 Facebook post titled Pelosi, Sen. Chuck Schumer, DN.Y., and Rep. Alexandria Ocasio-Cortez, DN.Y. “High value targets,” prosecutors said.
“They really need to be shot,” Hunt wrote. “These commies will see death before they see us surrender.”
Another comment from Hunt called on former President Donald Trump to stage a public execution of Pelosi, Schumer and Ocasio-Cortez, authorities said. “If you don’t, the citizens will. We are not voting in another rigged election. Start the firing squads, mow down those commies and let’s take America back, ”Hunt wrote.
After the April 28 verdict, Mark J. Lesko, Acting US District Attorney for the Eastern District of New York, said his office “will not tolerate threats of violence against public officials charged with enforcing the Constitution.”
Two suspected rioters from the North Texas Capitol have also been charged with uttering threats. But their trials are set to take place in Washington DC, a liberal enclave very different from the North Texas countryside.
Troy Anthony Smocks, 58, of Dallas, reportedly wrote on Speak that patriots like him should launch an armed hunt for Democrats, tech executives and other “traitors” on Capitol Hill.
And Garret Miller, 34, of Richardson, is accused of storming the Capitol building and making death threats against members of Congress and the Capitol Police. Miller called for the Ocasio-Cortez assassination, and he threatened Schumer on Instagram, saying “we’re coming for you,” the FBI says.
The two men have pleaded not guilty and are still in detention awaiting trial.
Different points of view
Kacy Miller is president and owner of CourtroomLogic Consulting, a Dallas-based jury consulting firm. She said politics is only one factor, in addition to the individual facts of each case. All facts being equal, it’s no surprise that a trial in Wichita Falls might have a different outcome than in New York, she said.
“People have different views on how the world works depending on where they live,” Miller said. “The tone and tenor of what happens in society is important.”
Trotter said he questioned the jury during jury selection about their political affiliation. Only three said they were Democrats, and he hit all three of the panel, he said.
But there are other considerations beyond party identification, Miller said. Did the jurors perceive the threat as an intent or incitement to harm, or was it just “some kind of a flap springing out and wanting to be heard?”
Miller said it was unwise to generalize and expect a juror to think a certain way based solely on his political leanings. Perhaps a juror had a relative who was injured in some way due to online threats, she said.
Plus, some people don’t use social media or follow politics, Miller said. Another factor in trials, she said, is “courtroom dynamics,” that is, the surrender of lawyers and interaction with witnesses.
In the Perry trial, the 18-minute jury deliberation is revealing, Miller said.
“It tells me that everyone was unified in their opinion,” she said.
Trotter acknowledged that the location likely played a role in the outcome of the trial.
“You could do it [convict] in Dallas or Austin, ”he said.
Trotter, however, said his client was not encouraged by the verdict to continue posting provocative sentiments online.
“I told him about it. He said, ‘I’ve learned my lesson.’ “