There is a free speech controversy brewing in Louisville, Kentucky where a lawyer is facing criminal charges for allegedly threatening Kentucky governor Any Beshear. James Gregory Troutman, 53, made uniquely stupid and disturbing statements opposing Beshear’s lockdown. However, the comments could easily be understood as hyperbolic and hateful but not actually threatening. For the free speech community, these terroristic threat laws are written so broadly that they threaten political speech. This could well be such a case where stupidity is being treated as criminality.
Troutman is charged with one count of third-degree terroristic threatening for posts on social media April 16 and April 20.
In one of the posts, Troutman said someone should ask Kentucky Gov. Andy Beshear at a press conference about “his thoughts on William Goebel.” Goebel is a former Kentucky governor who was shot in 1900.
Later, Troutman discussed a rally to protest business closings. A Facebook commenter asked whether Beshear would be “shooting plates,” a reference to the authorities taking pictures of license plates of those who defy orders to attend religious services.
Troutman responded by saying “With any luck the gov will be the one at whom the shooting will be directed.”
The comments were obviously moronic, but I fail to see how they meet the statutory definition of the crime and even more importantly can be prosecuted without violating the First Amendment.
Here is the state statute:
Section 508.080 – Terroristic threatening in the third degree
(1) Except as provided in or , a person is guilty of terroristic threatening in the third degree when: (a) He threatens to commit any crime likely to result in death or serious physical injury to another person or likely to result in substantial property damage to another person; or (b) He intentionally makes false statements for the purpose of causing evacuation of a building, place of assembly, or facility of public transportation. (2) Terroristic threatening in the third degree is a Class A misdemeanor.
He clearly was not making these statements under subsection b to “intentionally make false statements form the purpose of causing evacuation.” I also do not see the clear evidence that he was actually threatening to commit murder. His defense is obvious that he was engaging in the tiresome but common reference to the need for someone to shoot a political figure.
Yesterday, New Yorker journalist Hendrik Hertzberg was criticized for asking on Twitter if it was time for a military coup. I never thought that his tweet was serious or that he really wanted a military coup. Such heated and hyperbolic language is all-too-common in this age of rage.
Much has been made of the fact that in 2007 Troutman brought his own suspension of two years for firing an arrow from a crossbow that ended up going through a neighbor’s garage door and lodging into a refrigerator. Troutman insisted that he had taken a large amount of allergy medicine and pleaded guilty to wanton endangerment and criminal mischief. However, those charges were dismissed after his completion of his diversion program.
The Kentucky Supreme Court opinion that reinstated him to law practice stated that, while there was an instance of practicing in violation of the suspension, the investigation found him to be of “good moral character” and was “worthy of public trust.”
Troutman admitted immediately to the posts when he was contacted by police. The police decided the comments were “threatening to commit a crime likely to result in death or serious physical injury to the Kentucky Governor.”
If that is the standard, the scope of this criminal law could devour a wide array of political speech. I have been a critic of the alarming rollback on free speech rights in the West, particularly in France (here and here and here and here and here and hereand here). A teenager has sparked a national debate about blasphemy in France after an Instagram post calling Islam a “religion of hate”. Indeed, France has emerged as one of the greatest threats to free speech in the West and we continue to face calls for European-style speech crimes, including calls by its President on the floor of the House of Representatives. Not long ago a teenager in France has triggered a debate over its plunge into speech crimes and regulation after characterizing Islam as “a religion of hate.”
Terroristic threat provisions can serve that same function in censoring or criminalizing speech. Those concerns are magnified when used to punish speech directly against a politician.
None of this excuses Troutman’s comments or approves of such reckless and obnoxious comments. However, the greatest danger in this case seems to be threats to free speech rather than the governor. Troutman took no action or said nothing else that indicated that he actually wanted to shoot Beshear. The implications for criminalizing speech from such a broad interpretation is evident.
What do you think?