Monthly Archives: April 2021

We are disappointed that the U.S. Court of Appeals for the Tenth Circuit this week dodged a critical constitutional question: whether individuals have a First Amendment right to record on-duty police officers.

EFF had filed an amicus brief in the case, Frasier v. Evans, asking the court to affirm the existence of the right to record the police in the states under the courts jurisdiction (Colorado, Oklahoma, Kansas, New Mexico, Wyoming, and Utah, and those portions of the Yellowstone National Park extending into Montana and Idaho).

Frasier had used his tablet to record Denver police officers engaging in what he believed to be excessive force: the officers repeatedly punched a suspect in the face to get drugs out of his mouth as his head bounced off the pavement, and they tripped his pregnant girlfriend. Frasier filed a First Amendment retaliation claim against the officers for detaining and questioning him, searching his tablet, and attempting to delete the video.

In addition to refusing to affirmatively recognize the First Amendment right to record the police, the Tenth Circuit held that even if such a right did exist today, the police officers who sought to intimidate Frasier could not be held liable for violating his constitutional right because they had qualified immunitythat is, because the right to record the police wasnt clearly established in the Tenth Circuit at the time of the incident in August 2014.

The court held not only that the right had not been objectively established in federal case law, but also that it was irrelevant that the officers subjectively knew the right existed based on trainings they received from their own police department. Qualified immunity is a pernicious legal doctrine that often allows culpable government actors to avoid accountability for violations of constitutional rights.

Thus, the police officers who clearly retaliated against Frasier are off the hook, even though the Denver Police Department had been training its officers since February 2007 that individuals have a First Amendment right to record them, and that each of the officers in this case had testified unequivocally that, as of August 2014, they were aware that members of the public had the right to record them.

As we wrote last year in our guide to recording police officers, [r]ecordings of police officers, whether by witnesses to an incident with officers, individuals who are themselves interacting with officers, or by members of the press, are an invaluable tool in the fight for police accountability. Often, its the video alone that leads to disciplinary action, firing, or prosecution of an officer.

This is particularly true in the murder of George Floyd by former Minneapolis police officer Derek Chauvin. Chauvins criminal trial began this week and that Chauvin is being prosecuted at all is in large part due to the brave bystanders who recorded the scene.

Notwithstanding the critical importance of recordings for police accountability, the First Amendment right to record police officers exercising their official duties in public has not been recognized by all federal jurisdictions. Federal appellate courts in the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have directly upheld this right.

We had hoped that the Tenth Circuit would join this list. Instead, the court stated, because we ultimately determine that any First Amendment right that Mr. Frasier had to record the officers was not clearly established at the time he did so, we see no reason to risk the possibility of glibly announcing new constitutional rights that will have no effect whatsoever on the case.

This statement by the court is surprisingly dismissive given the important role courts play in upholding constitutional rights. Even with the courts holding that the police officers had qualified immunity against Frasiers First Amendment claim, if the court declared that the right to record the police, in fact, exists within the Tenth Circuit, this would unequivocally help to protect the millions of Americans who live within the courts jurisdiction from police misconduct.

But the Tenth Circuit refused to do so, leaving this critical question to another case and another appellate panel.

Although the Tenth Circuit refused to recognize that the right to record the police exists as a matter of constitutional law throughout its jurisdiction, it is comforting that the Colorado Legislature passed two statutes in the wake of the Frasier case.

The first law created a statutory right for civilians to record police officers (Colo. Rev. Stat. 16-3-311). The second created a civil cause of action against police officers who interfere with an individuals lawful attempt to record an incident involving a police officer, or who destroy, damage, or seize a recording or recording device (Colo. Rev. Stat. 13-21-128).

Additionally, the Denver Police Department revised its operations manual to prohibit punching a suspect to get drugs out of his mouth (Sec. 116.06(3)(b)), and to explicitly state that civilians have a right to record the police and that officers may not infringe on this right (Sec. 107.04(3)).

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Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police - EFF

Last month, TikTok user @nas.alive asked people to answer the question: Whats one thing that is normal in your country but weird for the rest of the world? It took off. Missing among the videos of bagged milk (Canada), nose-touching (UAE), live fish dwelling in bathtubs (Slovakia), and other global oddities was a primer on the First Amendment (US).

The First Amendment of the US Constitution limits the governmentnot private entitiesfrom restricting free expression. This is why companies like Facebook and Twitter can moderate contentand also why they could suspend then-President Trumps accounts during his last weeks in office. While many Americans applauded this move as an appropriate response to the violent Capitol insurrection, unexpected critics emerged in corners of the globe where the American version of free speech is considered, well, weird.

German Chancellor Angela Merkel criticized the move as problematic, saying that lawmakers, rather than social media CEOs, should regulate speechthe exact opposite of what the First Amendment allows. Despite her rocky history with Trump, the EU leader said that his free speech right can be intervened in, but according to the law and within the framework defined by legislatorsnot according to a decision by the management of social media platforms. Frances Finance Minister also said he was shocked by the decision, which he framed as social media oligarchy regulating speech. Leaders outside of Europe criticized the move as well.

The reaction is notable not only because it reflects an ideological difference in how the regions understand free expression, but also because it occurs during a pivotal moment of change for social media companies. The EU already has placed some regulations on digital platforms, and now it is pushing to broaden those regulations through the Digital Services Act. If First Amendment principles are to survive online, Americans must engage with changes abroad.

A bedrock of American historyand, correspondingly, American constitutional legal doctrineis distrust of the government. Anyone with a basic understanding of American historyor access to Hamiltoncan see why. By contrast, Europeans predominantly understand the role of government as a safety net against corrupt private sector interests. These differences are not merely speculative: Europeans report relatively higher levels of trust in the institutions of government, while Americans trust of government has been in more or less steady decline since 1958.

This may explain why the EU allows for more robust public regulation of the private sector. Take privacy law for example: in 2018, the EU implemented the General Data Protection Regulation (GDPR), which places requirements on companies to protect European residents data. Private companies guilty of violating the GDPR, by, for example, implementing poor data security measures, face fines of up to 4% of their annual global turnover or 20 million Euros, whichever is greater.

The GDPR has had sweeping consequences on a global scale. Most US companies with a European presence have found it most efficient to apply the GDPR requirements across the board to their entire global operations. American internet users now find themselves clicking through cookie consent notices on nearly every website they visit. Scroll up on this very article and you will see a cookie banner; you can thank Europe.

By contrast, privacy laws in the US are piecemeal and industry- or information-specific. For example, HIPAA protects medical information, and the Gramm-Leach-Bliley Act applies to data held by financial institutions. Unlike the GDPR, the text of these rules focuses on data security rather than abstract principles of individuals privacy rights.

When it comes to privacy, the US approach is to keep the government out of it as much as possible. The EU approach is to ask for government enforcement. In the end, the EU approach is winning: because it is easier for digital platforms to apply a uniform set of rules across their global operations, the strictest rules become the global norm.

While the GDPR imposes privacy rules, a different regulation, the e-Commerce Directive, creates rules for intermediary service providers that host third-party content, such as social media platforms. The 2000 e-Commerce Directive is old enough to drink even in America, so in December, the European Commission proposed an update via the Digital Services Act (DSA).

The proposed DSA is much lengthier than its predecessor, but it preserves key parts of the e-Commerce Directive by providing intermediary liability protection for user-generated content and prohibiting any laws that require platforms to monitor all content.

Its primary goal is to address illegal content, and it does so by laying out due diligence obligations, with the heaviest burdens on Very Large Platforms, those that reach at least 45 million average monthly users. The obligations include systems for reporting illegal content, including use of trusted flaggers, which are entities which have demonstrated particular expertise and competence, whose reports must take priority. Very Large Platforms must take mitigating measures at the organizational level to address illegal content. The DSA also allows users to challenge takedown decisions and encourages transparency about content moderation decisions.

The DSA does not define what is illegalfor that, platforms must look to national laws. Each Member State will create an independent authority called the Digital Services Coordinator to supervise compliance in their territory. Nations that identify a violation of their laws online can use the DSA procedures to send orders to platforms notifying them of the violation.

And although the takedown procedures only apply to illegal content, there are also measures in place to address merely harmful content, such as political disinformation, hoaxes and manipulation during pandemics, harms to vulnerable groups. Very Large Platforms must conduct risk assessments of their vulnerabilities to the spread of such harmful content, and those assessments will be subject to independent audits. Platforms are also encouraged to follow preexisting codes of conduct.

The proposed DSA is similar in some ways to the GDPR. Like the GDPR, it applies to all online platforms that offer their services in the EU, even if they are based in America, and requires non-EU platforms to appoint a legal representative. It also is enforced with fines set forth by each Member State, but the fines are potentially higher, capped at 6% (rather than 4%) of the global turnover of the digital platform. In extreme cases, a court can temporarily suspend the platform.

How would the decision to remove Trumps accounts fare in a world where the DSA is law?

Because the DSA allows Member States to enforce their own national laws on any platform operating anywhere in the EU, and it imposes the heaviest burdens on Very Large Platforms which are mostly US companies like Facebookthe strictest European nations laws could apply even to uniquely American social media controversies.

Germanys controversial NetzDG law is currently one of the most speech-restrictive laws in Europe. It requires that digital platforms censor hate speech and defamatory speech, as defined by the German Criminal Code, and it gives platforms a weekand, sometimes, just a dayto remove problematic content. This is a remarkable contrast to American law when one considers that it takes months or years for American courts trained in resolving legal disputes to determine whether speech is defamatory or notand hate speech is in fact protected under the First Amendment.

Even under NetzDG, the Trump tweets that led to his Twitter suspension may not have been illegal. And while the DSA mandates removal of illegal content, it leaves the question of what to do with merely harmful content up to the platforms. So, even if the DSA is passed, the EU would not require platforms to suspend Trumps account. Nor would it prohibit such a move.

But that could quickly change, as illustrated by a recent development in Poland. In response to the deactivation of Trumps social media accounts, Polish officials announced a new draft law that would make it illegal for platforms to take similar actions. The draft law states that social media companies cannot remove content that is not expressly illegal. Although the law purports to apply only to companies operating in Poland, under the DSA, the law would apply across Europe and, practically speaking, could extend into the US.

If laws like the Polish bill are implemented alongside the DSA, American First Amendment principles could come into direct conflict with the European model of free expression. European governments would not only tell companies what they must remove, but also what they must not remove.

Ask five Americans to explain to a European why the First Amendment is worth protecting, and youll get five different answers. This is not a design flaw, nor a failure of the US education system. Rather, the reasons for the First Amendment are, and have always been, varied and up for debate.

Among the many theories for the First Amendment is the idea of the marketplace of ideas the argument that ideas should be aired freely to allow the public to compare competing ideas, and the truth will prevail. Critics of this theory point out that powerful groupslike Very Large Platformswill have outsized influence in the marketplace. Another criticism of the marketplace theory is that, after 230 years of testing, it simply hasnt proven accurate: if anything, critics say, this model of free speech elevates salacious falsehoods and buries truth.

The European regulatory framework is perhaps a direct response to the perceived failure of the marketplace of ideas. Europeans think the truth needs a boost, and that boost should come from the government. An American may counter that there is no evidence that governments are better than platforms at leveling the playing field in a way that lets truth prevail.

Another theory of the First Amendment is that, in a democracy, government must stay out of speech decisions so that citizens can learn truthful information about their elected officials. Although the DSA is primarily focused on non-political speech, such as terrorist content and child sexual abuse material, it is theoretically problematic, because the rules are set by the very legislators that are under scrutiny.

Another theory is that self-expression has inherent value. Under this theory, the fulfillment of the selfartistically, spiritually, creativelyis only possible where the government is constrained. The DSA, and even the current regulatory framework, is problematic under this theory; these laws can be misapplied in ways that stifle expression. This risk is heightened by the DSAs cross-border reach, because expressive content, such as jokes and art, can take on vastly different meanings across cultures. The New York Times has already documented several instances where satirical content was censored under existing European laws. Because the DSA may result in nation-specific laws applied globally, platforms will have the unenviable job of determining whether a joke in Denmark is a crime in France, and which countrys interpretation prevails.

The challenge for platforms going forward will be complying with these evolving and demanding European regulations. The challenge for US and EU legislators will be harmonizing their free speech principles and addressing dangerous content without Balkanizing the internet. Although both regions value the fundamental right of free expression, European leaders comments on suspending Trumps social media accounts demonstrate that the EUs vision for the internet may be in tension with US First Amendment principles in unexpected ways.

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Is There a First Amendment Right to Tweet? - JSTOR Daily

Over the past year or so, ANC 6B10 commissioner Denise Krepp has tweeted updates on ANC business, as well as personal communications. She has also blocked constituents on the platform, as well as other DC residents and fellow ANC commissioners with whom she did not see eye to eye.

One of the residents she blocked, Mark Hecker, felt that it was inappropriate for an elected official to prevent her constituents from reaching her in an official capacity on social media. On Monday, his attorneys filed a complaint, which you can read here. Hecker announced the complaint via the following tweet, which links to a blog post by attorney Jason Harrow:

The complaint chronicles, in meticulous detail, not just the interactions between Hecker, a Kingman Park resident, and commissioner Krepp, but also explains the dynamics of Twitter and its role as a public forum.

Denise Krepp tells me that, as of Wednesday, she has not been served and has no comment. She added, Im going to continue to ask questions and Im going to continue being an ANC commissioner. Hecker said, My understanding is that it was filed Monday, but because of COVID some procedures seem to be happening very slowly. I reached out to Charlie Gerstein with this same question. He said, The court did not issue a summonsthe formal document acknowledging that the case has been properly fileduntil today. It usually takes two to three days for that to happen. We served the district this afternoon by email, and will serve Krepp tomorrow or the day after personally.

As of Wednesday afternoon, it appears that many of the people Krepp had originally blocked have now been unblocked. I asked Hecker if this changed anything in regards to the lawsuit and this is what he had to say: We plan to continue. Im not interested in making money, but I do think its important that the courts determine whether this behavior is a violation of the first amendment. We believe it is, and we look forward to the judges decision, even if Commissioner Krepp seems to now realize she was in the wrong.

Although only Hecker decided to engage a lawyer and sue Krepp for her alleged First Amendment violations, other people to whom I spoke for this post mentioned that they were also unhappy with Krepps behavior something that was shared widely on Twitter itself. One of the people to whom I spoke shared this sentiment anonymously: Hopefully this will garner attention that the focus should be on the harm that [Ms. Krepp] causes to Black and Brown residents in her ANC, not solely on whom she blocks on social media.

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Is blocking a constituent on Twitter against the First Amendment? This DC resident thinks so | The Hill is Home - The Hillishome

In a victory for free speech, the rule of law, and common sense, a three-judge panel of the U.S. Court of Appeals for the 6th Circuitrecently ruledthat a philosophy professor at Shawnee State University in Portsmouth, Ohio, could not be forced to use a transgender students preferred pronouns, and that his suit against the university for violation of his First and 14th Amendment rights could proceed.

The courts decision is the first of its kind, and establishes a needed boundary against American cultures new, brutish sexual orthodoxy.

At least within academia, one can no longer be compelled to say things one doesnt believe.

The incident that precipitated this suit occurred in January 2018, when Shawnee State philosophy professor Nicolas Meriwether responded to a male students question during a Socratic dialogue in his political philosophy class by saying, Yes, sir. After class, the student approached Meriwether, stated that he was transgender, and demanded that the professor refer to him as a woman, with feminine titles and pronouns.

Instead, Meriwether offered to use the students last name, or any other name of the students choosing, but politely declined to use the transgender students pronouns. The student became belligerent and promised to get Meriwether fired.

The student then filed a complaint with the university, which launched a formal investigation through the universitys Title IX office. Meriwether again offered various compromises in an attempt to protect his rights of conscience while being respectful to the transgender student, but the university rejected any arrangement other than the use of preferred pronouns, or the elimination of sex-based pronouns altogether (a virtual impossibility in a scholastic setting).

When Meriwether refused, the university formally charged him with a violation of Title IX, claiming he [had] effectively created a hostile environment for the student. The university placed a written warning in Meriwethers personnel file and threatened further corrective actions unless he articulated the universitys groupthink.

Two years prior, in 2016, Meriwether had received a faculty-wide email from Shawnee State leadership, directing all faculty to refer to students by their preferred pronouns. At that time, Meriwether, a devout Christian, had approached his department chair, Jennifer Pauley, with concerns about the policy. Pauley was not only dismissive of Meriwethers concerns,she was patently hostile.

Knowing Meriwether had successfully taught courses on Christian thought for decades, Pauley claimed Christians are primarily motivated out of fear, and should be banned from teaching courses regarding that religion. In her view, even the presence of religion in higher education is counterproductive.

Meriwether was told that even if a professor had moral or religious objections to the use of preferred pronouns, the policy would still apply.

Two years later, Meriwethers spotless record was marred by a disciplinary note, and he was teaching under the threat of further discipline, including suspension without pay or termination, unless he agreed to fall in line with Shawnees pronoun policy.

In November 2018, Meriwether sued the university in Ohio federal court for violation of his rights of free speech and religious liberty under the First Amendment, and violation of his due process and equal protection rights under the 14th Amendment. U.S. District Judge Susan Dlottthrew out Meriwethers lawsuiton Feb. 12, 2020, and among other things, held that a professors speech in the classroom is never protected by First Amendment. Meriwether appealed to the 6th Circuit.

InMeriwether v. Hartop et al., an impatient panel for the 6th Circuit wasted no time with perfunctory legalese or institutional pandering. It cut right to the chase in its frustration with Shawnee States stamping out of debate and open dialogue vis-a-vis its malignant speech policy.

Theopinion, which was written by Judge Amul Thapar and joined by Judge Joan Larsen and Senior Judge David McKeague, begins:

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.

The district court dismissed the professors free-speech and free-exercise claims. We see things differently and reverse.

The court went on to clarify that theSupreme Court has recognizedthat the government may not compel a speaker to affirm a belief with which the speaker disagrees. It added that courts haverecognizedthat the free speech clause of the Constitution applies at public universities, and that professors do not shed their constitutional rights to freedom of speech or expression at the [university] gate.

Thapar, the first South Asian federal judge in American history, and the son of self-made immigrants from India, seemed hard-pressed in containing his displeasure at the universitys looseness with long-standing judicial principles. Its clear he doesnt take kindly to Shawnee States loutish attempts at conformity.

In relaying a dizzying body of precedent, Thapar stressed that the court has rejected as totally unpersuasive the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.

Simply put, the judge wrote, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship because the need for free exchange of ideas in the college classroom is unlike that of other workplace settings.

In a critical discussion on the use of pronouns themselves, Thapar wrote:

[T]itles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students.

Thats not a matter of classroom management; thats a matter of academic speech Never before have titles and pronouns been scrutinized as closely as they are today for their power to validateor invalidatesomeones perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity

Shawnee State allegedly flouted [a] core principle of the First Amendment. Taking the allegations as true, we hold that the university violated Meriwethers free-speech rights.

The courts opinion in Meriwether v. Hartop is long overdue comfort to those who refuse to bend the knee on leftist groupthinkthe kind that forces a subjective and manipulable view of one persons self to become a defining reality for everyone else. It is a stake in the ground on behalf of religious dissenters and academic freedom.

Andwith poetic suitability to a Socratic dialoguethe decision reminds us that there are no personal truths, but only truths immemorial: realities that exists independent of our wishes to the contrary.

This piece originally appeared in The Daily Signal.

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The 6th Circuit Reached the Right Conclusion on Preferred Pronouns. Other Courts Should Follow Suit. - Heritage.org

Douglas Storys white supremacist street cred was easy to find. He had a white pride tattoo and a neo-Nazi license plate. In extremist online forums he made ominous, N-word-filled posts about President Obama: If someone puts a 30.06 round into the base of his skull, huh ya think?" The Aryan Nations even booted Story from its website when he sought help for converting his AK-47 rifle into a fully automatic machine gun a federal crime.

But none of that factored into his 2012 sentencing after the FBI arrested him in Virginia for possession of that modified gun. A federal judge blocked prosecutors from discussing Storys white supremacist views, because the First Amendment protects speech, no matter how offensive. Prosecutors could only focus on Storys illegal weapon.

Storys path to a prison cell reveals a common workaround that police and prosecutors use when investigating those who spew white supremacy, far-right or violent anti-government rhetoric. Its easier to send someone to prison for traditional crimes, often involving guns or drugs, than to convince a judge that repulsive hate speech breaks the law.

In the wake of the Jan. 6 attack on the Capitol, federal law enforcement is fending off complaints that it goes easy on white supremacists while monitoring Black and Muslim activists. These frustrations escalated after last months mass shooting in Atlanta that killed six Asian women. Many Democrats, advocates and even some within the ranks of law enforcement have long criticized the FBI and federal prosecutors for not doing more to crack down on white extremists. Some are now pushing again for a law that labels such crimes as domestic terrorism, but civil rights proponents worry that would also increase policing of communities of color.

On Tuesday, Attorney General Merrick Garland acknowledged the increasing problem with hate crimes and ordered a 30-day review of how the Justice Department combats it.

To understand how white supremacists are policed and punished, The Marshall Project analyzed nearly 700 federal prosecutions from 2012 to 2020 that involved what the FBI calls racially and ethnically motivated violent extremism and hate crimes. Academics at the University of North Carolina mined Justice Department press releases for cases involving extremism. Almost all the cases involved White men.

The research did not include Black extremist groups because few exist, said Ashley Mattheis, a communications expert at the University of North Carolina who studies violent extremism and propaganda. Its an incredibly small percentage, she said.

Two-thirds of the 671 cases The Marshall Project analyzed involved gun and drug charges against white supremacist gangs that formed in prison and spread to the outside world. Convictions and lengthy prison sentences were common.

But when we dug into the remaining 194 cases, we found that:

A third of the non-prison gang cases involved guns, silencers and bombs. Given the First Amendment complications, prosecutors say they prefer to bring these easier-to-win criminal charges as a workaround. Often these investigations featured lone wolves flagged for advocating ethnic hatred. If they had a criminal past, federal prosecutors slapped them with charges such as a felon in possession of a firearm. "Federal firearm laws are the Achilles heel of white supremacists," said Tom Brandon, recently retired acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

A quarter of the cases involved threats made online, in person or on the phone but not carried out. The victims were diverse: Tulsas district attorney and his daughter, who are White, received death threats; a Black city council candidate in Charlottesville, Virginia, was pressured to quit the race after a torrent of racist vitriol; a pair of halal grocers in Florida complained that law enforcement ignored threats to blow up their stores.

In a handful of threat cases, prosecutors resorted to other workarounds, such as accusing people of lying on federal job applications or failing to disclose mental health histories to the military.

Our analysis reflects only a portion of the FBIs work: investigations that ended with charges filed. It doesnt include the untold hours agents spend watching people they think could end up breaking the law.

FBI guidelines prohibit launching any investigative activity solely on the basis of someone's race, religion or identity. The guidelines allow agents to explore publicly available information such as social media posts and to do knock and talks unannounced visits where agents ask people to talk voluntarily.

The FBI doesnt release data on knock and talks and other surveillance activity. Nor does the agency share information about its investigations unless charges are filed in court.

We are not seeing that full picture, said Hugh Handeyside, an attorney for the American Civil Liberties Union, which is suing the FBI for surveillance files on Black demonstrators.

Activists in the Muslim community and the Black Lives Matter movement say these knock and talks are terrifying and all too common. The Council on American Islamic Relations said the FBI visited more than 100 Pakistani families across the country in 2016 on the grounds agents were investigating threats to the election, said Zahra Billoo, who heads the organizations office in the San Francisco Bay Area.

The bar for prosecutions is much higher. While Black Lives Matter activists and Muslim communities have sued the government over what they say is unfair surveillance, we found that criminal charges for racially motivated extremism which require probable cause, a much higher standard of proof involved almost exclusively White men.

The Justice Department shared an annual tally of people charged with either a federal hate crime, or threatening someone over state lines whether in person, online or by phone. But that tally also includes incidents that dont involve political or racist motives. A spokesperson said the agency didnt have a nationwide breakdown detailing if a suspect had ties to any racist extremists or anti-government groups.

In a recent letter to Congress, the FBI said half its 120 domestic terrorism arrests for the year ending Sept. 30 were linked to racism, with a vast majority involving people who advocate for the superiority of the White race. And 45% were listed as anti-government or anti-authority.

Tom OConnor, a retired FBI agent who specialized in domestic terrorism for 23 years, said the 2012 case he led against Douglas Story in Virginia was a textbook example of the challenges of investigating white supremacists.

Storys vanity license plate, 14CV88, alluded to a white supremacist slogan and a Hitler salute. He hung out on white extremism forums where he vowed to kill police if martial law was ever declared or if a neo-Nazi race war erupted. Story posted that a 30.06 rifle bullet was his preferred way to remove then-Attorney General Eric Holder, the first Black person to hold the office.

Citing such language, the FBI opened a preliminary investigation, but the threats against Obama and Holder were not specific enough to file criminal charges.

Hes not saying hes going to do something, hes not telling someone else to do something, said OConnor. Hes saying that if someone is shot in the head theyre going to die.

The FBI managed to work around the free speech obstacles after Story posted a message on a neo-Nazi website, wanting to convert his AK-47 to a fully automatic machine gun, a felony that could bring up to 10 years in prison.

An FBI agent posing as an underground gunsmith got the job done, leading to Storys arrest.

But when prosecutors detailed Storys hate speech in court documents, his defense lawyer acknowledged it was inflammatory language, but said it had nothing to do with his client owning a machine gun.

The judge ordered prosecutors not to talk about Storys white supremacist posts or his vitriol toward Obama at sentencing. The judge gave him one year in prison, a sentence OConnor described as a heartbeat.

Story did not respond to requests for an interview, but in an email denied being an extremist. I wasn't some wild eyed white supremacist, he wrote. My arrest, in my head, anyway, I consider a combination of FBI entrapment plus stupidity and naivete on my part.

Former federal officials say workarounds are inevitable because threat cases are hard to win. They are certainly more legally complicated than a gun case or a drugs case, said David J. Freed, the former U.S. Attorney in central Pennsylvania who left the post in January.

His office generally chose to forgo threat charges if there were more typical crimes involving violence or vandalism, Freed said. Prosecutors want to avoid courtroom debates over whether threats were a crime or protected speech. Any responsible prosecutor will know, you are buying yourself a fight, he said.

The Marshall Projects analysis showed that prosecutors generally pursued the most severe winnable charge, usually those involving guns and drugs. At least in one case, however, the opposite happened.

In 2016, Omar Rabbo, a halal grocer in Fort Myers, Florida, was angry that local police wouldnt arrest James Benjamin Jones, a 35-year-old White man who threatened to blow up Rabbos store, according to court records.

Frustrated, the Palestinian immigrant called the FBI; an agent was at his shop within an hour.

When the FBI went to Jones home, a psychedelic mushroom farm and illegal moonshine distillery were in plain sight. State prosecutors slapped Jones with felony drug and alcohol manufacturing charges. He faced up to 20 years in a Florida prison.

Prosecutors had a sure win with the drug and alcohol charges, according to Jones defense attorney, Christopher H. Brown, who described what happened next as the strangest swaps in history. Instead of pursuing the state felonies, the U.S. attorneys office told county prosecutors to drop the case, as part of a deal that let Jones plead guilty to two federal hate crimes instead which Brown saw as a way for the feds to win a hate crime prosecution.

In my personal opinion, the U.S. attorney saw it as a statistical thing, to say in this district we have a threat conviction involving Muslims, Brown said. I did the best interest for my client.

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A spokesman for the U.S. Attorneys Office in the Middle District of Florida said the Justice Department is still reviewing facts of the case. The crimes Jones admitted to carried a maximum of 10 years in prison for someone with a long criminal history. That was not the case for Jones, who got probation in the deal.

The plea agreement didnt bother Rabbo, the store owner, who believes Jones was mentally ill and brainwashed by people on the internet. I asked the judge for mercy, he told The Marshall Project.

That was an unusual sentence. Out of the nearly three dozen suspects convicted of federal threat crimes in the eight-year period analyzed, only five were placed on probation. The average prison sentence was 2.5 years, the longest being 10 years.

The Jan. 6 attack on the Capitol reignited a debate over how the country should handle domestic terrorism. There is no official tally of domestic terrorism crimes because there is no law that expressly bans Americans from using or threatening violence for political motives.

After the Charlottesville Unite the Right rally in 2017, Mary McCord, a Georgetown law professor and former federal prosecutor, began urging Congress to create a new criminal charge without increasing police powers. The new law would plainly label racist or extremist plots and attacks as terrorism, which could help thwart future violence, she argued.

McCord pointed to The Base, a violent neo-Nazi group that was building machine guns to trigger a civil war to create a white ethno-state. Prosecutors charged them with firearm violations and harboring an undocumented resident.

"Having crimes that fit the threat you are trying to thwart drives more resources and provides a more appropriate match between the resources and the crime," McCord said. "A statute would say this is a priority."

Proponents also argue a new law would address the lack of consistent punishment when a white extremist threatens to harm someone even high-profile politicians. In recent years a New York man was sentenced to 46-months for threatening to kill Obama and U.S. Rep. Maxine Waters. Yet another New York man got a year in prison for threatening to kill U.S. Rep. Ilhan Omar, who requested mercy in the case.

Civil rights advocates who oppose a new domestic terrorism law argue that it would only increase police surveillance in communities of color.

"The real solution here is certainly not to expand their budgets or their legal authorities, said Ramzi Kassem, a law professor at the City University of New York, referring to law enforcement. Kassem directs the CLEAR project, which provides legal counseling to people targeted by national security investigations.

When asked why she requested mercy for the man who threatened her, Omar said white nationalism poses a serious criminal threat. But we must also understand that no matter how odious these acts are, taking a punitive approach will not rehabilitate white supremacists, she wrote in a statement. Instead of treating this as a purely criminal matter, we must stay rooted in respect for justice and of human rights and of civil liberties as we respond.

Steve Kunzweiler, the district attorney in Tulsa whose family received threats, still feels cheated. As his office prepared to charge a Tulsa police officer who fatally shot an unarmed Black man, a Connecticut resident began to post the online threats. The poster vowed to kill the families of Kunzweiler, the police chief and other investigators.

Kunzweiler hoped that the judge would rule in favor of iron bar therapy, referring to a lengthy prison sentence. Instead, the suspect received probation for using the internet to send threats across state lines.

We are in this world of criminal justice reform, and I guess courts can look at that and say well, it was just words, Kunzweiler said. Yes, it was just words, but those words were directed at me and directed at my daughter.

Correction: An earlier version of this story incorrectly reported the academic specialty of Ashley Mattheis. She has a doctorate in communications.

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Why It's So Hard to Prosecute White Extremists - The Marshall Project

One year into the launch of online classes, the Nackey S. Loeb School of Communications has announced a spring session of first-time topics requested by students.

Eight free online classes of a single session each will run from April 6 to May 4. They include:

-- Finding Facts in a Sea of Misinformation, with PolitiFact Senior Correspondent Jon Greenberg (April 6);

-- Getting More out of LinkedIn, with content strategist Beth LaMontagne Hall (April 7);

-- Smart Marketing: Using Emotional Intelligence to Reach Your Audience, with consultant and coach Liza Dube (April 14);

-- Introduction to Speechcraft, with Toastmasters leader Lorraine Ratchford (April 16);

-- Virtual Meeting Readiness: Setting Yourself and Your Team Up for Success, with facilitator and mediator Sasha Tracy (April 19);

-- Communicating for Social Change Telling a Well-Framed Narrative, with the Frameworks Institutes Moira ONeil, Ph.D. and Kelly Lafamme, MPA (April 21);

-- Listen Up: Starting a Podcast, with National Public Radio producer Jonathan Smith (May 3);

-- Business Writing Basics: Financial Storytelling, with Bloomberg Intelligence editorial team leader Rik Stevens (May 4).

Two online writing workshops also are open for registration:

-- Expressing Ourselves Using Poetry to Tell the Story of our Lives, with writers, poets and publishers Stacy Milbouer and Tom Long (April 24, $50 per person);

-- Are you Ready to Write Your Book? with author and writing coach Kimberly Marlowe Hartnett (April 10, $90 per person, including an individual coaching session with instructor). Both workshops have limited space available.

All Loeb School classes and workshops require advance registration. See full class and workshop descriptions for more detailed information. Register at loebschool.org/register.

The Nackey S. Loeb School of Communications Inc., promotes and defends the First Amendment and fosters interest, integrity and excellence in journalism and other forms of communication by educating students of various ages and providing them with the tools and knowledge to improve their skill. More information can be found at loebschool.org.

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Loeb School announces free spring classes and writing workshops - The Union Leader