There is an interesting case out of Mesquite, Texas this week. Melissa Walthall, 30, has been arrested for allegedly posting a picture of an undercover officer in a narcotic case — a picture available on the officer’s Facebook page. Walthall was upset with the officer who testified against a friend in the case and found the picture on the Internet. She has been charged with “retaliation” even though she is not a party to the case and saw the officer in a public hearing. I have serious constitutional reservations about such a charge, even though I understand entirely the concern and anger of the police in a move that could endanger the officer.
The officer elected to publish his picture in a public forum and court visitors are not subject to any gag order from the court. There is no account of the officer’s name or image being withheld from the public. The police found that the posting posed a “viable threat to that officer’s safety.” To make matters worse, the defendant George Pickens (shown right) has a brother, Bobby Stedham, who made garage signs that identified the officer and was reportedly planning to distribute them. Pickens has a record of prior drug and disorderly charges.
Stedham, 26, has also been charged with retaliation. Even with Stedham, there are serious questions raised by the use of publicly available information to protest the work of a public servant. Of course, many retaliation cases involve otherwise lawful conduct such a appearing outside of a home or following an individual. Indeed, stalking cases are based on otherwise lawful acts done with an unlawful purpose. However, courtroom watchers were not subject to a court order on discussing or describing what they saw. Presumably, they could have rendered their own pictures of the testimony. Since the state has options to protect the identity of undercover officers such as testimony without court watchers or testimony behind a screen, the failure to seek such protections would undermine the criminal case. This is particularly the case with someone like Walthall who is neither a relative nor a witness. Accounts do not indicate whether steps were taken to conceal the name or face of the officer in the case.
Then there is the question of intent to do “harm.”
The Texas statute states:
§ 36.06. OBSTRUCTION OR RETALIATION. (a) A person
commits an offense if he intentionally or knowingly harms or
threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or
status of another as a:
(A) public servant, witness, prospective
witness, or informant; or
(B) person who has reported or who the actor
knows intends to report the occurrence of a crime; or/blockquote>
There are other reasons for publishing the image of an officer as part of a protest over his role or testimony or as part of an effort to learn more about the officer. Indeed, the picture was accompanied with the caption and question ‘Undercover Mesquite Narcotics’ and “Anyone know this bastard?” That could be seen as an attempt to gather information on the officer, which is difficult without a picture.
This is a far more serious example of cases that we have previously discussed involving citizens revealing speed traps or warning approaching drivers. Here there is certainly a more serious concern for the officer, but those concerns did not apparently lead to requests for protections in court. The question involves the criminalization of the disclosure of information citizens acquire in the public domain. Making such publications a crime could have significant implications for free speech, particularly with observers at protests who record clandestine police activities in public.