By Dhar Law, LLP
The recent immigration-related legal changes and the increase of arrests have fostered a tensed atmosphere between police and citizens. In the recent case of threats against ICE agents, a Cambridge resident was arrested for threatening to have an ICE agent killed for a $500 payout on Twitter.
On July 2nd of this year, Brandon Ziobrowski, a Cambridge resident, tweeted the following: “I am broke but I will scrounge and literally give $500 to anyone who kills an ice agent. @me seriously who else can pledge get in on this let’s make this work.” He was arrested on August 9th on federal charges for tweeting this alleged threat.
Ziobrowski’s tweet is part of “a rising tide” of threats issued “under the guise of political debate,” according to U.S. Attorney Andrew E. Lelling. “There is a rising trend upward in threats against the lives of law enforcement officers, especially those [who] are involved in enforcing federal immigration laws,” Lelling said.
Ziobrowski’s arraignment hearing has been set to September 6th in the U.S. District Court of Boston.
REASONS BEHIND THE INDICTMENT
The Grand Jury alleged Ziobrowski knew he had 448 followers on Twitter and therefore knew his tweet would be publicly available. His tweet was “designed to encourage violence and the murder of law enforcement agents.”
This wasn’t the first time Ziobrowski threatened public officials on Twitter; he talked about having John McCain’s throat slit and promoted violence against police officers.
With the charge of use of interstate and foreign commerce to transmit a threat to injure another person, Ziobrowski could be facing a sentence of no greater than 5 years in prison, three years in supervised release and a fine of $250,000.
WHAT EXPERTS SAY: IS THE TWEET PROTECTED UNDER THE FIRST AMENDMENT FREEDOM OF SPEECH?
This case focuses on the difference between political speech and actual threats of violence against public officials. Political speech would be covered by the First Amendment and not prosecutable, contrary to threats which constitute criminal acts under 18 U.S.C. §875(c). The U.S. Supreme Court addressed this issue in Elonis v. United States, 575 U.S. (2015). It held that prosecutors need to show that the menacing statements are meant to be threatening rather than simply overheated exaggerations or Twitter rants.
Because the First Amendment does not cover threats of violence, but rather political speech (among other things), the outcome of the case will lie on whether the court considers the tweet as “hyperbole” or as a true threat, according to Harvey Silverglate, a Cambridge constitutional lawyer. Silverglate says that context is key: “If he knows these are heated times and there are people who harbor ire against ICE, then what to the speaker might be hyperbolic or blowing off steam might be a crime. These are tough times in the free speech arena.” As we’ve seen earlier, Ziobrowski has been threatening police officers and ICE for a long time now, and with the current immigration and police tension context, this tweet might be interpreted as a threat. U.S. Attorney Lelling emphasized the threatening climate around police officers during a press conference after the arrest of Ziobrowski. This wasn’t the first time a twitter account threatened ICE agents. The “Occupy Wall Street” Twitter account posted instructions on how to murder and dismember ICE agents in June 2018.
Eugene Volokh, a UCLA law professor, suggests arguing the $500 bid was not enough for a murder payout and it couldn’t be reasonably expected of someone to take it seriously with such a low amount. This defense would fall under the earlier “hyperbole” argument, which would make the tweet a Twitter rant, rather than a threat.
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