Arizona Arrest Raises Free Speech Question Of Whether Mocking Scalise Shooting Constitutes Criminal Threat

1499374902036We 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 3rd degree for attempting to force his way into Flake’s office).


53 thoughts on “Arizona Arrest Raises Free Speech Question Of Whether Mocking Scalise Shooting Constitutes Criminal Threat”

  1. I keep anticipating that open-carry will be permitted in Congress, and that legal issues will get settled at gunpoint. Maybe some bulletproof glass in front of the visitors’ gallery.

    1. I keep anticipating that open-carry will be permitted in Congress, and that legal issues will get settled at gunpoint.

      Of course you do. Now why is that? Because you’ve gobbled up every left wing, anti-2nd amendment talking point, hook, line and sinker. Even when this nation was at Civil War, how many issues were settled in the manner you project? Do you take Ativan for breakfast to get through the day?

      1. What I do know is that, among all the advanced countries, the US has far and away more guns per capita than any other country advanced, and far and away more gun deaths per capita than any other advanced country. Is this a coincidence?

  2. A wacko should have the right to say what he wants. But a cop, a prosecutor and a judge have the right to lock him up for being wacko, solely based on what he said. If he says that he has the right to shoot all the Mormons then he might get locked up for saying that. Not for opinion but for thrreat to others. He is a danger to self or others by reason of his insanity. Oswald was like that. He did not need to kill JFK even if JFK was a Catholic. So it was ok for someone to kill Oswald because he posed a threat to others because he was wacko. Or because he was paid by the CIA. If you folks look up “Cointel program” on Google you might learn about our government and its efforts to stifle this or that. MLK was likely killed on orders of the FBI. James Earl Ray was helped to escape from a Missouri state prison and then had a stash of cash to go around the country and to England or elsewhere. He did not seem to be wacko.

  3. Some superb comments from our diverse group here. If I were doing a threat assessment on this sh!tbird I would put extra security on Flake[i agree Flake is a pompous weinie] and maybe some surveillance on the hobo.

    1. Weinie
      An expression meaning to call you a dummy
      Person 1: Hey the sky is green!
      Person 2: NO it’s blue you weinie!!


      1. Lawrence W – Flake is a weinie because I say he is. He has gone back on almost all of his campaign promises. When he was in the House he was a conservative, because he represented a conservative district. Now, a the junior Senator from Arizona, he has become McCain’s butt boy.

  4. I believe that there is enough room for interpretation that a lawyer may succeed in getting the threat aspect thrown out.

    However, I do believe that in this context he did make comments threatening violence against the staffers, they were justified in calling the police, and the police were justified in adding this charge. Whether or not there will be a conviction remains to be seen. But the charge itself was justified.

    If a woman in an apartment building was shot, but survived, and a man barged into another woman’s home in the same apartment building, refused to leave, and said, “You know what that guy’s problem was? He didn’t have good aim. We men have to get better aim. And we will.” And then he stuck around until the police arrived. Professor Turley can replace “woman” with “lawyer” and “apartment building” with “court house” in this scenario for other applications. Lawyers are unfortunately often threatened and endangered due to their profession, and so have to take threats seriously as well. I’m sure there are sadly many scenarios he is aware of where veiled threats have been made against his colleagues, and where he would understand where his colleagues may have felt justifiably frightened and threatened by similar statements. We have to take them seriously, and sometimes it has to go to Court to decide if it is free speech or a threat.

    Now I ask you, would a reasonable woman in this scenario have felt that he was making a threat against her, personally? Yes, yes she would. Would a reasonable man not intending to make a threat, and merely commenting on the news or his opinions in general, have left the premisses before the police arrived? Yes, yes he would.

    I would also point out that if the staffers did not call the police or did not report the threat, because they felt it was merely free speech, and the man returned and shot employees, then they could be held liable, whether financially, or morally.

  5. In the past, various Republican or right-wing individuals spoke of “Second Amendment remedies” if elections didn’t go their way. They seemed to be deadly serious.

    So how can one be surprised at the shooting of Scalise, and at the subsequent comment by Prichard?

    1. They seemed to be deadly serious.

      Well, when they transition from seem to are, then get back to us. In the meantime, neither Giffords or Scalise deserved to suffer the acts of nutjobs. Why am I not surprised you would imply they had it coming?

    2. The person you’re recalling was Sharron Angle, and what she said was this:

      “Angle: I feel that the Second Amendment is the right to keep and bear arms for our citizenry. This not for someone who’s in the military. This not for law enforcement. This is for us. And in fact when you read that Constitution and the founding fathers, they intended this to stop tyranny. This is for us when our government becomes tyrannical…

      Manders: If we needed it at any time in history, it might be right now.

      Angle: Well it’s to defend ourselves. And you know, I’m hoping that we’re not getting to Second Amendment remedies. I hope the vote will be the cure for the Harry Reid problems.”

      It’s not merely that she’s discussing hypotheticals. You see, there was this fellow named Thos. Jefferson….

      1. So if you don’t like the person voted into office, shoot him or her out of office?

  6. If they broke into your home and threatened to kill you, you could shoot and kill them in many states without reprisal. Maybe we need a “shoot the psychotic constituent” bill to protect our public servants from criminal intimidation.

  7. If I was at that office and the guy was in front of me saying that stuff I would pull out my pistol, aim it at his head and say: Repeat after me…

  8. Personally, I think Flake is a weinie and I call his office ever couple of weeks to tell him so. It hasn’t changed him any, but I keep trying. Flake promised much when ran and has kept little. I support anyone of any side who protests him.

    1. HEY PAUL,

      An expression meaning to call you a dummy
      Person 1: Hey the sky is green!
      Person 2: NO it’s blue you weinie!!


      1. Lawrence W – wienie has nothing to do with I.Q. You really need to check the definition.

        1. ” … wienie has nothing to do with I.Q.”

          If you are trying to say that a wienie is ” … someone who is kind of an annoying kiss-up or wimp … ” then I think I have to agree.

          Some I the smartest guys I know are wienies.

          I doubt that McCain is a wienie, however. Just guessing but I suspect McCain is more the hot dog type – which is something completely different.

  9. The words aren’t actionable but the trespass on private property is. Were I the judge, I’d take into account the verbiage and punish accordingly. Twelve months seems about right for these miscreants.

  10. These guys are going to have lots of problems. Searches, seizures, harassment and trumped up charges used as a peripheral punishments for their bravado laced stupidity.

  11. Having the police reports available to review would be helpful but not wanting to spend the time looking for them at the present, I only offer some commentary based on the issues and information provided.

    I disagree with Professor Turley that this is completely an issue of free speech being curtailed by government, that the words expressed by these men are free, lawful exercises of constitutionally protected speech. We are forgetting context.

    Had these men voiced these same words in a different context, such as sitting at a restaurant talking only to each other, the exact same words used would be clearly covered by free speech.

    But in this example it is a different context.

    These men are accused of criminal trespass and from what I can gather made the persons in the Congressman’s office feel alarmed. It is for this circumstance that transforms ordinary speech into something that when taken with the totality of the circumstances into that of a conveyed threat. Adding all the factors together leads to whether speech is criminal or civilly actionable.

    From the perspective of speech becoming threatening one measure is if a person of reasonable prudence would feel threatened by the actions of the speaker. We have to deconstruct the environment.

    Here is a possible scenario and due to limited information provided, might not resemble that of this case but it is used as an example.

    1. A mass shooting occurred contemporaneously where others were shot in a politically motivated attack
    2. A cohort to the victim, another official, has his office occupied by hostile actors making reference to the shooting
    3. Given the vitriol presently and the propensity for some actors to copycat such actions a heightened sense of security is placed in the premises.
    4. These actors in the office refuse to leave and make taunting gestures and implied threats to cause injury to others.
    5. The staff are worried to such degree they summon police assistance, the actors do not leave prior to the arrival of the police
    6. Was there a reasonable apprehension on behalf of the witnesses that the actors had the means and intent to carry out these threats immediately? A person who is belligerent, refuses to leave could be evidence to support such apprehensions.

    Again, if these same words were uttered by some otherwise benign person speaking without such items above, there would be clearly no criminal issue because again a reasonable person question could be brought up. A reasonable person would conclude that two men talking in a restaurant, saying the same things to each other, is not a criminal matter.

    We need to take context into the argument before dismissing the criminal liability of the speech.

    1. Excellent analysis. I often agree with Turley but this time it’s clear that the words were a form of hate speech. No cogent and appropriate person would ever, under the circumstances, make such threatening and hateful remarks, given the circumstances and location of the remarks.

      Free speech in this context is hate speech and threatening behavior. Taken in context, this man’s behaviors and words constitute a threat.

    2. I agree with Darren that context is important. I also agree that there isn’t enough information to judge the context.

      Considering that the two men look a bit scary doesn’t mean that they really are. My dad used to use a fair amount of violent rhetoric when talking about the president many years ago. Did he mean it? Yes. Did he look scary? When worked up he could have done a mug shot that could have made this a trio. Could he have executed it? Not a chance. His walker would have slowed him down and made it difficult to hold a weapon. Violent rhetoric and a shaking fist really aren’t much of a threat.
      OT: Rep. Scalise was just moved into the ICU due to an infection. New conspiracy (tongue in cheek): a new way to finish him off? Wound him enough to put him in the hospital for an extended stay, a place where the odds are pretty good that will get a really serious, potentially fatal, infection.

      Hypothetically, from a legal standpoint, if Scalise was on the mend but dies due to the infection is the shooter guilty of murder? Certainly, he’s guilty of some form of assault, but since the infection is from the hospital, aren’t they the ones guilty of some form of homicide?

      1. “Hypothetically, from a legal standpoint, if Scalise was on the mend but dies due to the infection is the shooter guilty of murder?”
        I am not intimately familiar with this jurisdiction’s criminal procedure but typically if a death occurs within a year after the initial aggravated assault, the crime will be upgraded to a murder.

        1. Even if the cause of death is unrelated to the original crime? So Scalise could get released from the hospital, get in a car accident and die, and the shooter is liable? Doesn’t seem fair. Oh, right, “justice”

          1. The original assault must be a proximate cause of the death. Even if the death was caused by say an infection which was a complication of a surgery to treat the original injury it is still a cause for elevation of the crime to a murder. The unrelated car accident you mention would not affect the defendant’s criminal case.

            1. Back to the hypothetical: The victim is on the mend, a discharge is expected soon, a hospital induced infection causes his death. As a lawyer for the defense (I’m not one, this is a hypothetical), I would try to work a deal where client pleads guilty to an appropriate level of assault and all other charges are dropped. As a lawyer for the victim I would sue the hospital for wrongful death.

              A friend’s dad went in the hospital for a fairly routine procedure, was on the mend and ready to go home, died from an infection that should not have happened. Another friend’s daughter went in to deliver her baby. Daughter showed symptoms but doctors didn’t think of an infection being the proper diagnosis even though the baby was diagnosed and treated for the infection. Baby recovered. Mother died.

              Maybe I’m tired of hospitals getting away with it.

              1. BettyKath,.
                I think if a plaintiff can establish gross negligence as the cause of “an infection that should not have happened”, they’d have a reasonably strong civil suit.
                My guess is that it’s a highhurdle in most cases to sue a hospitalfor an infection that developed.
                Withall of the antibiotic- resistent “Superbugs” that we’re nowseeing, even the most diligent facilities maystuggle with rates of infections.

          2. BettyKath,…
            If the injured victim in an attempted homocide “gets into a car accident and dies”, the charges can’t be upgraded.
            The cause of death has to be related to, and a consequence of, the initial assault.
            If a shooting victim subsequently dies from a fatal infection because of his wounds, then the assailant is as responsible as if the victim died on the spot at the time of the shooting.
            President Garfield’s assassin argued that he “only shot” Garfield, but that his doctors killed him with gross malpractice.
            Garfield might have survived the injuries from the shooting if his doctors had not kept probing his wounds with unwashed hands, and neglected to regularly clean and re-dress the wound.
            ( They executed him anyway, but some of Garfield’s doctors should probably have gone to the gallows with him!
            By the early 1880s, they should have known better than to invite infection with their sloppiness).

    3. I wholeheartedly agree, Darren! We are in danger of becoming a society ruled by a minority of loud-mouthed imbeciles, instead of by a majority of voters. The other part of the context we need to consider, is Mexico and what has happened to its society as criminals have been allowed to threaten and murder in the name of their minority interests. IMO these brainless hillbillies should be sentenced to house arrest. Put an ankle thingy on them so duly-elected officials don’t need to worry about violent reprisals.

    4. I wouldn’t want to explain, after someone else is shot, why the threat equaled free speech. The Scalise shooting itself is a threat to anyone representing their constituents in Congress. I’d rather a comment like this put him in a mental evaluation facility. Maybe they both would be in a facility forever.

      As a conservative I belong to the Republican Party. It frightens me that Democrats or Liberals make foolish comments which endangers someone’s life. If jailing these people results in no one being shot. That’s fine with me. I also think the words “first amendment” are being stretched as far as possible to cover flat out lies!

  12. Give the government any excuse to continue to wall itself off from the people it serves and it will take it. Just try to get into any federal building these days.

  13. It’s a pretty odd and an inappropriate use of the term, mocking, in the title of this piece. Mocking? Really? A threat to take better aim and succeed at murdering someone is now considered mocking? You mean mocking, as when the teacher turns her back and the kids mock her walk or her stance? You mean mocking, as when someone mocks a speaker and makes funny or comical faces? A pretty innocuous use of the term, mocking, where lives have been threatened with grievous injury and/or death.

    1. To Kill A Mocking Bird. Here the bird is the word. He is a fruit loop. Look at his photo.

  14. A perfect example of what years and years of drugs will do to the human brain. Just look at these two mutants. Barely a single, working brain cell between them. Love the free speech bs argument. I guess it takes those kind of comments, aimed at you and yours, for those threats to become actionable. Typical.

  15. Progressive Problem Solving 101: if your political enemy wins, if you lose the debate due to stupid position and/or complete lack of debate skills, if/when you lose an election, kill your political enemy.

    1. My guess is “assault”, and thus:

      2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or

      Since the Libtards are already trespassing, then I think it is reasonable for the people there to be in apprehension. Obviously the Libtards have no respect for the law, already.

      It would be like if somebody barged into your home and said this, as opposed to someone being on a soapbox in the City Park. The second scenario is more likely to a Free Speech issue, than the first scenario. IMHO.

      Squeeky Fromm
      Girl Reporter

  16. Prichard said, ” “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.

    The only legal issue I see is “immediacy” or the “imminent” factor. But, since he was there physically, then he should be prosecuted.

    Also, was this Federal property, or is Flake and his staff given Federal coverage?

    Squeeky Fromm
    Girl Reporter

    1. Squeeky,
      The Sheriff’s office stated that Flake’s office is not public property.
      It is a private property in a business district rented by Flake.

    2. I think your quote clarifies the question of free speech.

      Consider the last three sentences. The sentence that begins “They are going …” and the next sentence that begins “That last guy tried … ” seem to be statements about fact. And the sentences do not seem to include the speaker. Without additional factors such as gestures or body language to clarify the meaning of the words, these sentences do not seem to be threats.

      The last sentence that begins “We will … ” seems to include the speaker and is clearly a statement about future action or – at least – intention for future action.

      I don’t see how anyone can avoid the conclusion that the last statement is a threat.

      All three statements are objectionable. The last sentence is a threat against both individuals and the political process.

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