Sept 8 (Reuters) - A patchwork of state and federal laws can be used to prosecute the people behind a barrage of personal attacks and intimidating messages that are being sent to America’s election administrators. But legal scholars and current and former prosecutors say authorities must walk a fine line between America’s laws against criminal threats and its constitutional protections on political speech.
Some prosecutors hesitate to take on such cases, said Kendra Albert, who teaches at Harvard Law School’s Cyberlaw Clinic. “They may see some of these suggestions of violence as political speech,” Albert said. “Courts are going to really heavily scrutinize these prosecutions under the First Amendment.”
Constitutional protections, however, do not cover threats of violence, and numerous state and federal laws allow police and prosecutors to pursue cases against people who terrorize others, for political reasons or other motives, legal scholars say. Many states make it a felony to threaten acts of terrorism.
Georgia, for instance, criminalizes threats made with the “purpose of terrorizing another.” Police in the southern Georgia city of Albany arrested Richard Dubose on Dec. 31 for allegedly yelling a racial slur and threatening Gregory Murphy, a Black campaign worker who had left a flyer at his home. They charged Dubose, who is white, with “terroristic threats and acts,” according to a police statement. Dubose, 49, is one of just four people arrested for election-related threats involving the 2020 vote, according to a Reuters review of public records and news accounts. The case remains open.
Dubose could not be reached for comment.
Federal law also makes it a felony to communicate a threat across state lines, such as by phone or email. That’s the statute used to charge Katelyn Jones, of New Hampshire, who federal prosecutors accused in December of threatening the daughter of Monica Palmer, a Wayne County, Michigan election official. Jones, a former Michigan resident, came to believe that Palmer had interfered in last year’s presidential election.
Jones’ motivations and political leanings remain unclear; she couldn’t be reached for comment.
Prosecutors alleged that Jones sent the Republican election official pictures of a “bloody, deceased, nude, mutilated woman,” followed by a photo of Palmer’s daughter. “I’d just like you to imagine that’s … your beautiful daughter,” one text read, according to court records. Under one of Palmer’s Instagram posts, Jones wrote: “Hmmm it’d be a shame if something happened to your daughter at school.”
Jones, 24, is the only person charged with a federal crime involving threats related to the 2020 presidential election. She sent the threats on Nov. 18, a day after Palmer and her four-member board certified Democrat Joe Biden’s win over Republican Donald Trump in the county. Palmer had earlier voted against certification.
About a month later, Jones was arrested and pleaded not guilty. The case remains open.
State and federal laws against stalking could also apply to intimidation of election workers, legal experts said, particularly in cases of repeated threats of violence over a period of time. Such laws generally prohibit any actions that put a person in reasonable fear of death or serious injury, or cause emotional distress.
Legal scholars acknowledge, however, that many allegedly threatening messages and incidents fall into a gray area.
“There’s no bright-line rule that says, these are the magic words that must be included in a threat,” said Mary McCord, a former acting assistant attorney general for national security at the Department of Justice who now teaches at Georgetown Law School.
Adding to the confusion, legal scholars say, has been the apparent reluctance of the U.S. Supreme Court to address when states can criminalize threatening speech. In 2020, for instance, the court refused to review a Kansas Supreme Court ruling that said a state law classifying a threat as a felony was unconstitutional because it could penalize protected speech.
“There’s much debate within academia, within the legal community and within the judiciary generally as to exactly what’s required in order to punish someone for speaking or writing a threat,” said Jared Carter, associate director of the Cornell Law School First Amendment Clinic. “We really need clarity from the U.S. Supreme Court on this topic.”