“Gasoline is Awfully Cheap”: Police Action Against “Ace Burns” Raises Free Speech Concerns

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We have often discussed how advocating for free speech often places us in troubling company.  Those who are targeted for arrest are often the loudest and most obnoxious among us.  Ace Burns is one of those people.  Burns, 34, whose real name is Israel Burns,, is the self-proclaimed leader of the “FTP movement (which he defined in various ways including “Fire To Property”). Burns was taken into the police station after alluding to the possibility that the Diamond District in New York would be burned to the ground.  It is a prototypical violent speech cases and, as many on this blog will not be surprised to read, I believe it raises a serious concern for free speech.

Ironically, we previously discussed the issue of violent speech in a column where I argued against charging Michael Brown’s stepfather during the Ferguson rioting.

Burns told a reporter with Fox News

“You know I’m a leader of this ‘FTP’ movement. It means a lot of things. It can mean free the people, it can mean for the people, it can also mean ‘fire to property.’ You know that’s very possible …

Today, I’m giving a demonstration from Barclay’s Center at 6 p.m. to City Hall, and that’s the first stop — and we’re hoping [Mayor] De Blasio and [Gov.] Cuomo come out and talk to us and give the youth some direction. But if they don’t, then [the] next stop is the Diamond District,” he said, referring to a block on Manhattan’s 47th Street known for jewelry shops. “And gasoline, thanks to Trump, is awfully cheap. So, we’re giving them a chance right now to do the right thing.”

The police responded by saying that they searched for the man in the interview and “took him in.”

The NYPD revealed on Twitter that they located Burns and brought him in for questioning about his claims

The case raises the issue of violent speech, a controversial area of prosecution.  I do not believe that these 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 in the federal court on this issue in United States v. Al-Timimi.
The Burns case is reminiscent of Watts v. United States, where the defendant spoke at a rally against the military draft and said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.”  He was prosecuted under a federal statute that prohibited “any threat to take the life of or to inflict bodily harm upon the President of the United States.” The Supreme Court overturned the conviction and held that the words were not a “true ‘threat” but “political hyperbole.”

Likewise, in NAACP v. Claiborne Hardware Co., white merchants in Claiborne County, Mississippi, involved a civil action based on a statement made by NAACP Field Secretary Charles Evers that

“black people that any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.” The Supreme Court found that Evers’ “emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg. . . . An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”

This Burns case is certainly not abstract or purely hyperbolic given the arson that has occurred in these protests.  However, it still demonstrates the concern among many in the free speech community over this exception to the protections under the First Amendment.  Burns was making inflammatory statements about these protests.  If he was planning an attack, he would have been charged with conspiracy or actual terrorism.  He was threatening what he viewed as the status quo and a privilege class. Most of us are appalled by the statements. However, the government can construe any statement as an imminent threat under such an approach.
Clearly, the other charges would indicate that there is more to this story.  However, if the terroristic threat charge is based on the interview, it raises troubling questions for free speech.

 

42 thoughts on ““Gasoline is Awfully Cheap”: Police Action Against “Ace Burns” Raises Free Speech Concerns”

  1. Two observations, Professor Turley:
    1 – Mr. Burns specifically chose to threaten the Diamond District, which is mostly populated by businesses run by Jews. Would you feel threats by a white power activist to firebomb Harlem were also protected speech?
    2 – Firebombing seems to be common during this outbreak of violent organized protest. Britannica defines terrorism as the calculated use of violence to create a general climate of fear in a population and thereby to bring about a particular political objective. Burns’ violent threat was a credible threat to commit violence if city leaders didn’t meet with him and his friends.

  2. ““You know I’m a leader of this ‘FTP’ movement. It means a lot of things. It can mean free the people, it can mean for the people, it can also mean ‘fire to property.’”
    ~+~
    Yep, I knew that moving files via File Transfer Protocol caused our server to Halt and Catch Fire but nobody listened.

    1. I guess I’m the only guy here who figured “this “FTP” movement” might also mean “F**k the Police”.

  3. It is questionable whether Brandenburg v. Ohio applies here. Brandenburg dealt with a statute prohibiting the incitement of others to violence. Here, the speaker claimed to lead a movement that would set fire to the Diamond District. Thus, his statement could be interpreted as his claiming that he would be involved in doing so and not just incite others to do so. Thus, the question is whether the statement was a true threat. I do not think this was a true threat so I do not think he should be prosecuted. However, the fact that he mentioned gasoline being cheap could be interpreted to mean that he thought through the details of budgeting for such a plan. Thus, it is less likely be interpreted as a hyperbolic statement.

    1. they wont lock him up, not for long. they make the arrest, search his phone, pull his computer research, it’s just rabble rousing garbage, they will cut him loose

      if they want to crack down on riot then they should target blm organizers. they don’t. it’s a charade

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