Can Bloomington prosecute mall protest leaders for Facebook posts?

Bloomington’s city attorney is promising to scour the Facebook pages of organizers of last weekend’s Black Lives Matter protest at the Mall of America and use what she finds — if she finds anything — to prosecute them for the illegal protest.

“It’s important to make an example out of these organizers so that this never happens again,” Sandra Johnson told MPR.

That notion is now getting some national attention. Can you prosecute people for what they write on Facebook, Bloomberg is asking today?

“The standard for criminal punishment of incitement is quite high,” says Mark Tushnet, a law professor at Harvard. In a 1969 decision rejecting the Ohio conviction of a Ku Klux Klan leader, the Supreme Court said the government could only forbid advocating that people break the law “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Under that precedent, “people can be punished for advocating illegal activity only if they intended that illegal activity ensue, only if they used explicit words of incitement, and, most importantly, only if they intended to incite ‘imminent’ illegal activity under circumstances in which such illegal activity was likely,” says Frederick Schauer, a law professor at the University of Virginia.

That last one could pose the biggest constitutional obstacle for prosecutors out to punish people for instigating protests. Under prevailing law, says Schauer, “imminence” is “a very strict standard approaching standing in front of an angry mob and encouraging them to immediate illegal action.” It’s particularly difficult, says CUNY’s Robson, to prove someone guilty of incitement based on Facebook posts or other written statements, which are less likely to have a provable immediate effect. Another obstacle for prosecutors: Some cases have also suggested that for incitement to be illegal, it has to be incitement to “pretty serious” crimes, notes Schauer, though those precedents are less clear.

Given that standard, there’s nothing on the Black Lives Matter Facebook page in advance of the demonstration that’s likely to be prosecuted, especially since it carries announcements of training in non-violent protest.

  • KTN

    Over at Scotusblog, there is a primer on the case heard this fall Elonis v. United States. A case where a man made threats on Facebook towards his ex-wife, and was convicted of those threats (the Court is now hearing his appeal). Amy Howe does a great job of presenting this case in plain English. The parallels are close. The Bloomington City Attorney would be well served to watch this closely – maybe even read the briefs.

    • A. Scott

      Elonis is a case re: internet threats, totally unrelated to statements, incitements and collusion to violate the law, made on the internet, as here. It is about “holding people responsible for going online to ‘shoot off their mouths,’ as one lawyer put it”.

      There are no parallels whatsoever. One is regarding whether internet threats do do harm to another can be taken at face value. The others is whether the law can take statements made at face value. If you say “the law is bullshit, and I am going to violate it” and then you DO take part if the group violation you issued a statement of fact on, your statements most certainly can be taken at face value.

      • KTN

        No, you’re wrong about the parallels between Elonis, and the potential charges by the Bloomington attorney. Both Elonis and the protest organizers used Facebook, and the government used (or is attempting to use) those posts as constituting a “true threat”. Elonis used some pretty vile words in his posts, the protesters not so much. They were not calling for violence, rather they were calling for participation, a pretty deep divide between those two concepts. Even the Chief Justice was skeptical of the governments position to use what a “reasonable person” would think when evaluating a Facebook threat. Remember, the Court takes a dim view of limits to the 1st A. I’m going to say 6-3 in favor or Elonis. And if he does prevail, the Bloomington attorney will have lost her ability to use any Facebook posts to call for a non-violent protest. She will have to waste her time finding another means to pursue these scofflaws.

        “holding people responsible for going online to ‘shoot off their mouths,’ as one lawyer put it”. Is that a new legal standard now?

  • essjayok

    “Make an example” = waste of her time and ours. Disgusting.

    • A. Scott

      Make an example = making people who intentionally and knowing violate the law, and incite others to violate the law, pay for their crime by being prosecuted for their crime and assessed the expenses caused thereby

  • blindeke

    Bloomington taxpayers should be pissed, not only about this waste of time, but about how much their voices are outweighed by the Mall’s owners.

    • A. Scott

      Bloomington taxpayers should – and generally do- appreciate that their police and staff hold people accountable under the law.

      The public opinion is overwhelmingly against the Black Lives Matter people and for the Mall and prosecution.

  • A. Scott

    Black Lives Matter publicized the event on Facebook. They publicized that the City and MOA informed them it was an unlawful, not permitted event and they would be subject to arrest and prosecution.

    Black Lives Matter publicized on Facebook that the city and MOA had arranged a legal high visibility public site adjacent to the main entrance to MOA, but they refused that site. They stated they would not pay the $20 fee to obtain a permit to use this leg site, and regardless they publicized their intent was to disrupt shoppers and cause a financial effect, to get people to pay attention to their message.

    Black Lives Matter announced they intended to proceed – to break the law – regardless, and incited others to do the same. Several thousand of those invited voluntarily responded that they too chose to break the law and attended the event as part of the unlawful protest.

    None of them have any reasonable expectation of privacy by commenting on a public website. Their statements, comments and actions are fair game for the City – these are voluntary statements and admissions.

    MOA has extensive video surveillance, and you can be sure they were all on and working that day, along with, I’m sure a cadre of still photogs.

    There is nothing in the law or case law that would prevent the prosecutor from using any and all of this public information to identify protesters and charge them.