When a Judge Is the “Victim”: Unconstitutional Application of Arkansas’ “Terroristic Threatening” Statute
By: Elizabeth Lyon
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock
Our First Amendment right to free speech cannot be restricted by individual state governments. When Arkansas applies one of its statutes to criminalize speech that is protected by the First Amendment, Arkansas risks violating the constitutional rights of individuals. This happened last year in a Pulaski County case (60CR-21-3977) against Arick Johnson. The arrest warrant in this case unconstitutionally applies Arkansas鈥檚 鈥溾�� statute to Facebook posts that do not constitute a true threat. Although these posts make embarrassing accusations against Pulaski County Judge Herbert Wright and other officers of the court, they are not a true threat because the primary purpose of these posts is to communicate the author鈥檚 intent to stage a protest in Judge Wright鈥檚 neighborhood.
Since the alleged victim is a Pulaski County circuit judge, all of the other Pulaski County circuit judges recused themselves 鈥� including Judge Cathleen Compton, who set a high bond before recusing herself on September 29, 2021, citing a personal relationship with the alleged victim. Thus, for four and a half months after his arrest, Mr. Johnson sat in jail with no opportunity to appear before a neutral magistrate to point out what should have been clear from the start: It is unconstitutional to criminalize public speech unless the speech is a .
The speech at issue in this case (60CR-21-3977) is a post on the Facebook page of the Arkansas Bar Association. It reads:
YOU might get hunted down on 馃帴 like herbert wright is about to. 馃幆馃敟馃挴
S DUB SPECIAL coming soon!
鈥淏Y ANY MEANS NECESSARY鈥�
Although the for Mr. Johnson鈥檚 arrest says, 鈥淢r. Wright believes the S DUB special is referring to S(mith) and W(dub) special firearm,鈥� the phrase 鈥淪 Dub鈥� is broadly recognized as a reference to Southwest Little Rock. provides this example: 鈥淢ane it be a bunch of hoes on Geyer Springs and Baseline down in the s-dub.鈥� Since Mr. Johnson鈥檚 home is near Chicot Elementary, his neighborhood is considered 鈥渄own in the s-dub鈥�.
Arick Johnson serves as Director of , a nonprofit linked to the Facebook profile, Another posts on this profile reads:
Americans Against Corruption =
“BY (ANY) MEANS NECESSARY”
From to Judge,Prosecutor, the bailiff might need it too. They can be & dealt with accordingly with the right [tool emoji] 馃槀
Richard, Theo, Cara & associates
Yall lucky the 馃拵said wait鈥�.. 馃槥
Its not against the law to plan a protest at a judge 馃彙馃槀
Scary white Supremacist 馃棏锔廐erbert Wright
What does the 鈥渢ool鈥� emoji mean here? Probably the 鈥渢ool鈥� is a cell phone, used as a camera. A video posted last August shows Mr. Johnson riding a bicycle, towing a toddler behind him. Mr. Johnson says, 鈥淐harlie, you ain鈥檛 help me pedal none. Dang, Charlie! You know Daddy got this tool on him and stuff, mane. You ain鈥檛 help me do nothing, man. You just be ridin鈥�. Why you just be ridin鈥�, Charlie? Hm?鈥� Mr. Johnson鈥檚 shadow shows that he is holding a cell phone. There appear to be no other 鈥渢ools鈥� in the video.
The repetition of 鈥淏y any means necessary鈥� refers to the activism of , who has been criticized for advocating violence as a moral necessity. However, 鈥溾�� Additionally, 鈥溾�� 鈥� between the abstract teaching of violence as a moral necessity and the actual preparation of a group for violent action 鈥� 鈥渋mpermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.鈥�
The First Amendment permits states to criminalize true threats. The encompasses 鈥渢hose statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.鈥� Thus, the threatened conduct must be violent, and the threatened conduct must be unlawful to constitute a true threat. In contrast, 鈥溾�樷�� and neither is speech intended to 鈥溾��
A 鈥溾�� is lawful because it is 鈥減rotected by the rights of free speech, free assembly, and freedom to petition for a redress of grievances.鈥� These demonstrations are legal even when they occur on 鈥�,鈥� because those areas are part of the public forum where speech on matters of public concern is protected. Therefore, for Arick Johnson鈥檚 arrest to be constitutional, he would have had to 鈥渢hreaten鈥� something more violent and illegal than a public protest in a residential neighborhood. The warrant does not allege any such unprotected speech, except for Judge Wright鈥檚 alternative understanding of the words 鈥淪 DUB SPECIAL.鈥�
It is easy to sympathize with Judge Wright鈥檚 fear, given the current political climate. In July 2020, a disgruntled attorney named Roy Den Hollander attacked the family of , wounding her husband and killing her son. For the past two years, . However, as once wrote, 鈥淔ear of serious injury cannot alone justify suppression of free speech.鈥�
Attorney Sarah Doar of 鈥渢roublesome behavior鈥� and 鈥渉arassment鈥� faced by modern public officials by writing, 鈥淸A]rresting a member of the public or having a criminal complaint filed against a person is a very serious step for a local government to take but it may need to be considered if the person makes it impossible for business to be safely or effectively carried out.鈥� However, such criminal charges must remain within the bounds of the U.S. Constitution. As , 鈥淰ulnerabilities should be addressed through legislation that enhances judicial security without trampling First Amendment principles.鈥�
The application of Arkansas鈥檚 鈥淭erroristic Threatening鈥� statute to these Facebook posts tramples the First Amendment principle of free speech. These posts may amount to 鈥渢roublesome behavior鈥� or 鈥渉arassment鈥�, but as far as terroristic threatening goes, Arick Johnson never should have been arrested in the first place.