We often debate on how one should take a mug shot. Mark Prichard, 59, went with the “I’m really happy” approach.  His crime however was less joyful.  He was arrested after allegedly making threatening comments toward Arizona Sen. Jeff Flake’s staff that referenced the shooting of House Majority Whip Steve Scalise.  There is an interesting First Amendment issue raised by some of the charges against Prichard.

Prichard was arrested at Flake’s office after telling a staff  “You know how liberals are going to solve the Republican problem? . . . They are going to get better aim. That last guy tried, but he needed better aim. We will get better aim.”

It was a tasteless reference to the June 14 shooting at a Republican congressional baseball practice in Alexandria, Va. that left Scalise, R-La., and four others wounded.  Flake was at the game.

Prichard was among a group of protesters and was charged with criminal trespassing as well as threats and intimidation after staffers in Flake’s district office called authorities. There could be serious problems with the later charges under the First Amendment.  I would have serious concerns if a citizen could be criminally charged for such a statement. It is tasteless and offensive but, if that statement is taken as a criminal threat, a wide array of such political speech could be criminalized.  The statement could be defended as a distasteful taunt and hyperbole.  Unless there is more that was not reported (including threatening behavior), this statement is general and unspecific as to any individual.  Free speech demands “bright lines” and criminalization should not based on taking the most extreme interpretation of political remarks to find a threat.

While the court has distinguished “fight words,” criminal threats and other narrow categories, it does not bestow the government the open right to strip protection of speech because it has deemed “hateful.”  Indeed, in Brandenburg v. Ohio (a 1969 case that we can discussed much in terms of “violent speech”), the Court struck down an Ohio law prohibiting public speech that was deemed as promoting illegal conduct. It supported the right of the KKK to speak even though it is a hateful organization.  Likewise, in R.A.V. v. City of St. Paul in 2011, it struck down a ban on any symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Most recently, in Snyder v. Phelps in 2011, the Court said that the hateful protests of Westboro Baptist Church were protected.

As I have stated before, criminalizing speech can become a slippery slope.   There is a danger that statements like Prichard’s can be deemed a threat out of natural anger and revulsion.  Notably, the other arrestee was charged only with trespass.

By the way, Prichard’s mugshot approach seems to have been shared by his co-arrestee: 70-year-old protester Patrick Diehl (who was arrested for criminal trespass in the 3^rd degree for attempting to force his way into Flake’s office).