By: Elizabeth Lyon
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock
Our First Amendment right to free speech cannot be restricted by individual state governments. When Arkansas applies one of its statutes to criminalize speech that is protected by the First Amendment, Arkansas risks violating the constitutional rights of individuals. This happened last year in a Pulaski County case (60CR-21-3977) against Arick Johnson. The arrest warrant in this case unconstitutionally applies Arkansas’s “Terroristic Threatening” statute to Facebook posts that do not constitute a true threat. Although these posts make embarrassing accusations against Pulaski County Judge Herbert Wright and other officers of the court, they are not a true threat because the primary purpose of these posts is to communicate the author’s intent to stage a protest in Judge Wright’s neighborhood.
Since the alleged victim is a Pulaski County circuit judge, all of the other Pulaski County circuit judges recused themselves – including Judge Cathleen Compton, who set a high bond before recusing herself on September 29, 2021, citing a personal relationship with the alleged victim. Thus, for four and a half months after his arrest, Mr. Johnson sat in jail with no opportunity to appear before a neutral magistrate to point out what should have been clear from the start: It is unconstitutional to criminalize public speech unless the speech is a true threat of death, physical injury, or illegal property damage.
The speech at issue in this case (60CR-21-3977) is a post on the Facebook page of the Arkansas Bar Association. It reads:
YOU might get hunted down on 🎥 like herbert wright is about to. 🎯🔥💯
S DUB SPECIAL coming soon!
“BY ANY MEANS NECESSARY”
Although the affidavit in support of the warrant for Mr. Johnson’s arrest says, “Mr. Wright believes the S DUB special is referring to S(mith) and W(dub) special firearm,” the phrase “S Dub” is broadly recognized as a colloquial reference to Southwest Little Rock. Urban Dictionary provides this example: “Mane it be a bunch of hoes on Geyer Springs and Baseline down in the s-dub.” Since Mr. Johnson’s home is near Chicot Elementary, his neighborhood is considered “down in the s-dub”.
Arick Johnson serves as Director of Americans Against Corruption, a nonprofit linked to the Facebook profile, Arick Johnson Sr. Another posts on this profile reads:
Americans Against Corruption =
“BY (ANY) MEANS NECESSARY”
From to Judge,Prosecutor, the bailiff might need it too. They can be & dealt with accordingly with the right [tool emoji] 😂
Richard, Theo, Cara & associates
Yall lucky the 💎said wait….. 😞
Its not against the law to plan a protest at a judge 🏡😂
Scary white Supremacist 🗑️Herbert Wright
What does the “tool” emoji mean here? Probably the “tool” is a cell phone, used as a camera. A video posted last August shows Mr. Johnson riding a bicycle, towing a toddler behind him. Mr. Johnson says, “Charlie, you ain’t help me pedal none. Dang, Charlie! You know Daddy got this tool on him and stuff, mane. You ain’t help me do nothing, man. You just be ridin’. Why you just be ridin’, Charlie? Hm?” Mr. Johnson’s shadow shows that he is holding a cell phone. There appear to be no other “tools” in the video.
The repetition of “By any means necessary” refers to the activism of Malcolm X, who has been criticized for advocating violence as a moral necessity. However, “[T]he mere abstract teaching. . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” Additionally, “[a] statute which fails to draw this distinction” – between the abstract teaching of violence as a moral necessity and the actual preparation of a group for violent action – “impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.”
The First Amendment permits states to criminalize true threats. The definition of “true threats” encompasses “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Thus, the threatened conduct must be violent, and the threatened conduct must be unlawful to constitute a true threat. In contrast, “‘political hyperbole’ is not a true threat,” and neither is speech intended to “embarrass others or coerce them into action.”
A “peaceful march and demonstration” is lawful because it is “protected by the rights of free speech, free assembly, and freedom to petition for a redress of grievances.” These demonstrations are legal even when they occur on “public streets and sidewalks in residential neighborhoods,” because those areas are part of the public forum where speech on matters of public concern is protected. Therefore, for Arick Johnson’s arrest to be constitutional, he would have had to “threaten” something more violent and illegal than a public protest in a residential neighborhood. The warrant does not allege any such unprotected speech, except for Judge Wright’s alternative understanding of the words “S DUB SPECIAL.”
It is easy to sympathize with Judge Wright’s fear, given the current political climate. In July 2020, a disgruntled attorney named Roy Den Hollander attacked the family of Judge Esther Salas at her home, wounding her husband and killing her son. For the past two years, the American Bar Association has been calling for increased security for judges. However, as Justice Brandeis once wrote, “Fear of serious injury cannot alone justify suppression of free speech.”
Attorney Sarah Doar tackles the problem of “troublesome behavior” and “harassment” faced by modern public officials by writing, “[A]rresting a member of the public or having a criminal complaint filed against a person is a very serious step for a local government to take but it may need to be considered if the person makes it impossible for business to be safely or effectively carried out.” However, such criminal charges must remain within the bounds of the U.S. Constitution. As ABA President Patricia Lee Refo writes, “Vulnerabilities should be addressed through legislation that enhances judicial security without trampling First Amendment principles.”
The application of Arkansas’s “Terroristic Threatening” statute to these Facebook posts tramples the First Amendment principle of free speech. These posts may amount to “troublesome behavior” or “harassment”, but as far as terroristic threatening goes, Arick Johnson never should have been arrested in the first place.