Ferguson Police Chief Tom Jackson indicated this week that they are “pursuing” an investigation into whether comments made by Michael Brown’s stepfather Louis Head (shown here in the white cap) should be charged for his inciting a riot for his response to the news that there would be no indictment of Officer Darren White. While I certainly do not condone the language, I have long been a critic of such “violent speech” prosecutions and I believe that such charges would violate his free speech rights and ignore the mitigating factor of a family member in a highly emotional position that night. Warning: profane words are contained in the story below and the videotape.
After the news of the grand jury decision, Head started to scream “Burn this motherfucker down! Burn this bitch down!” Looting and arson broke out soon after the decision of the grand jury.
In addition to police chief, Missouri Lt. Gov. Peter Kinder told Fox News that it sounds like Head was trying to incite a riot.
After the grand jury’s decision was announced, 12 commercial buildings in Ferguson were destroyed by fire and there were well over 100 arrests at St. Louis-area.
I do not believe that Head’s comments would satisfy the standard established by the Supreme Court in 1969 in Brandenburg v. Ohio as advocating imminent violence. Violent speech is protected under the Constitution absent such a threat of imminent violence. I have previously written about the dangerous line of criminalizing speech. I currently have a case going before the United States Court of Appeals for the Fourth Circuit on this issue in United States v. Al-Timimi.
Adding to the constitutional concerns raised by the threatened prosecution of Head is that fact that he was a grieving family member expressing widely shared anger at the news of the decision. He had just jumped up to hold his wife who was sobbing after the news. I doubt anyone seriously believes that it was Head who triggered the rioting, looting, and arson. Those crimes occurred at the time of the incident and were widely anticipated by law enforcement personnel. Head has apologized for his outburst and said that he was wrong to call for violence.