Ebony Dickens, a young woman and mother, was recently arrested and charged with “disseminating information related to terrorist acts.” She set up a Facebook account with a pseudonym and posted this:
All Black ppl should rise up and shoot at every white cop in the nation starting NOW. I condone black on white killings. Hell they condone crimes against us. I’ve thought about shooting every white cop I see in the head until I’m either caught by the police or killed by them. Ha!!!! I think I can pull it off. Might kill at least fifteen tomorrow. I’m plotting now. They reading this sh** too right now. Freedom of speech tho. So when you can absolutely show me the 1st amendment where it explicitly says you can’t say “kill all cops,” then I’ll delete my status. Other than that…NOPE! Death to all white cops nationwide.
Various comments on this story have claimed that this is not “protected” or “free” speech. That it constitutes a “threat.” The statement has been compared to “crying fire in a crowded theater.”
This kind of analysis is shallow to say the least. It is the mere repetition of a facade of norms built not upon popular consent, but upon legal authority. That is, the comment itself is not a taboo. We largely do not abstain from such comments in daily conversation. Most people, in the privacy of their own homes, say things that would be illegal if written and presented in public. We’ve see a double standard, then, between what people themselves overwhelmingly do and what the law permits others to do.
It is also true that most people, within the near-impenetrable barriers of their own minds, harbor violent plots and entertain violent thoughts. I mentioned a related phenomenon in the past – intrusive thoughts – in relation to the Flight 4U 9525 incident. It’s natural for people to briefly, but regularly, entertain fantasies of violence, revenge and retaliation. Natural in the sense that this is a common psychological phenomenon and it probably applies to you, too. (If police officers are not the target of your violent fantasies, perhaps a couple of common ones – pedophiles, terrorists or foreigners – are.)
What Ebony Dickens said, then, is not unique. It isn’t deviant. And what she said specifically – “death to white cops” – is without a doubt a common revenge fantasy for many Americans who have been systematically abused by the police. Especially those who have experienced abuse along racial lines. (For Americans who haven’t been abused along racial lines, many more might shorten it to a racially inclusive “death to cops.”)
So you’re not alone, Ms. Dickens. Many people share your thoughts and feelings. Probably more than we want to admit. Certainly more than the police want to admit.
We should also note, at this point, that what Ebony Dickens wrote might not even be illegal. Indeed, according to criminal justice mythology she is “innocent until proven guilty.” But when Dickens wrote “1st amendment” she may very well have been correct. Consider this statement, made in the 1960s by a man resisting the draft:
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.
Protected speech, or a clear threat against former President Johnson? According to Watts v. United States, this was protected. Despite the fact that it is more of a threat than what Dickens wrote – it actually specifies a person, and that person was the President of the United States – it was determined to be protected speech. By the US Supreme Court.
The nature of the charge brought against Dickens, incidentally, is not making a threat, but the broader “disseminating information related to terrorist acts.” The legal standard for charging someone for making a threat stipulates that it be a “true threat.” (A “true threat” is defined as a threat “that a reasonable person would interpret as a real and serious communication of an intent to inflict harm.”) This is why Watts’s statement was found to be protected: his threat against President Johnson was not a “true threat,” but political rhetoric and hyperbole.
It’s also hard to read what Dickens wrote as anything but political rhetoric and hyperbole. It’s obviously not a “real and serious communication of an intent to inflict harm.” But it is more easily shoehorned into a vague “disseminating information related to terrorist acts.”
Back to the real world, or law as actually practiced and not criminal justice mythology. Dickens is already guilty. She was guilty as soon as she was arrested. It doesn’t matter if she is convicted, nor what her sentence may be. The damage is already done. Dickens has been censored. The conditions of her bail prohibit social media usage. And, because of the relationship between the media and law enforcement, her face and arrest are permanently available for anyone to review. She will face severe social consequences, such as barriers to employment, even if she is found not guilty or the charges are dropped.
It is becomes obvious, then, that Dickens is being used to make a statement. This arrest is a tool to manufacture and lead social discourse in a specific direction. Specifically, away from meaningful resistance to law enforcement. A few people have said that the police are going to make an example out of her. In fact, they’ve already made an example out of her. The arrest itself is intimidating. It’s a form of suppression and censorship, not only for Dickens but for anyone who shares views even remotely related. This isn’t only my opinion. That these kinds of arrests are a tool used by the police to intimidate was also the opinion of Supreme Court Justice Douglas, who ruled in the Watts case mentioned above:
Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.
The use of legal intimidation is important to recognize, because of the way it shapes discourse. And in a so-called democracy, any shaping of discourse impacts the political outcome. If a large body of the public believes that police officers should be killed in the streets – if they believe that a black uprising is necessary – that is a political sentiment that must be digested by the public for an informed democracy to act accordingly. With the knowledge that a significant percent of the population has reached the threshold of supporting violence, a democracy, ideally, should be able to self-correct before violence becomes necessary.
Of course, the United States is neither informed nor a democracy. Thus the recognition of a black community, having been subjected to centuries of violence, always with a significant subgroup supportive of violence-as-resistance, is not important to those in political power. Those in power have an agenda independent of the general will, independent of the demos, and certainly at odds with subjected minority groups.
This is why when people say “that’s not protected speech” they are just parroting, shallowly. A woman who insults Islam, or a comedian who makes a joke about Charlie Hebdo, is also not considered to have engaged in “free” or “protected” speech. When American colonists called for revolution and violence against British authorities, or when abolitionists called for violence against slave holders, this was also illegal. It was neither “protected” nor “free” speech.
When we say “free speech” in this context – speech that is specifically forbidden – it’s Orwellian newspeak. We’re not talking about the ability of individuals to make truly controversial statements. Rather, individuals are merely allowed to make statements within the boundaries of what is permitted by law.
It isn’t only violence or threats. Nonetheless, to respond “but a threat isn’t free speech” is special pleading. We can’t exclude forms of speech – words on paper – and claim that free speech still exists. The fact is that free speech does not exist, nor has it ever in the United States. What exists is merely the tolerance of a greater scope of expression than in (some) comparative states. And the most important speech – speech that has broken chains and expanded liberty – most often has been illegal.
We should also point out that what Dickens wrote was not, factually, a threat. There was no victim. No one will be called to the stand to testify about how they were threatened. No one, after having some offense or act committed directly against their person, contacted law enforcement and asked them to intervene based on what Dickens wrote. This isn’t a threat-related offense, but a “terror”-related offense. It isn’t a threat against persons, individuals. It’s a threat to the political ruling class and the power of the state.
What Dickens wrote was a political statement against a political group – law enforcement. It has its strongest legal parallels in the Watts case. When Watts said that he wanted to get L.B.J. in the sights of his rifle it was the political nature of the American presidency that justified Watts’s statement as an act of political speech.
Those who call for violence against the police are also making a political statement, regardless of legality. If it is a crime, it is a political crime. If it is illegal, it is illegal the same way slave revolts and revolutionary movements have been illegal. It doesn’t pose a threat to you and I. And we need to recognize that, because the arrest of Ebony Dickens is little more than a transparent attempt to muffle much-needed anti-police stirrings in the American milieu.
(Of all of the coveage on the arrest, there has been little critical discourse on the nature of the statement. Specifically, if it is truly criminal. A quick search of “Ebony Dickens” pulls up a host of local news stations asserting, in more or less words, “she made a threat to kill cops.” Kudos, then, to people like Ken White at Popehat – bloggers of the legal community – who didn’t immediately decide Dickens committed a crime on the mere basis of her arrest. The news surrounding the case, and the public response to it, is a clear example of: the role of the media as misleading individuals and perpetuating authoritarian dialogue, a severe lack of legal knowledge on the part of the public, and the Kafkaesque nature of the existence of laws too confusing for the public to understand.)