U.S. Attorney William C. Killian's Crusade Against Constitutionally-Protected Anti-Muslim Hate Speech

Vows to Use Federal Civil Rights Laws to Prosecute Offensive or Inflammatory Social Media Posts - U.S. Attorney for the Eastern District of Tennessee is Self-Described Victim of Ku Klux Klan Harassment in the 1960's

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U.S. Attorney William C. Killian,

Politico's Byron Tau, - posting in Josh Gerstein's "Under the Radar" courts blog - reports on U.S. Attorney William C. Killian's threat to prosecute constitutionally-protected speech determined by the Obama administration to be offensive or inflammatory.  Killian, the  U.S. Attorney for the Eastern District of Tennessee.  issued his threat in an interview with a reporter for the Tullahoma News,   Killian warned the public that using social media to spread information that offends or incites Mulsims could be subject to prosecution under the Federal Civil Rights laws.  Killian's overt threat to prosecute anti-Muslim "hate speech"  is the most misguided and frightening of the many anti-free speech statements that have come from the Obama administration's Department of Justice. . As Floyd Abrams points out in Tau's article, "He’s just wrong."

If Killian had consulted his Department of Justice U.S. Attorney's manual - before threatening the public with unconstitutional prosecutions - he would have realized just how right Floyd Abrams was about   just how wrong Killian is.  The manual is sprinkled with section after section that explain the  First Amendment implications of prosecuting Federal crimes.  This section of the Criminal Tax Manual contains a correct summary of the proper legal standard that should be applied under the  United States Supreme Court' decision in Brandenberg v. Ohio:

"In Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the Supreme Court held that "the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Thus, the Court created an exception to First Amendment protection for speech that incites imminent lawless activity, as opposed to speech that merely advocates violation of law, which may still be constitutionally protected."

The threats by Killian are especially pernicious because they come from a U.S. Attorney who - with  nation-wide jurisdiction to prosecute Internet-based crimes - can  cause a lot of damage through ill-advised or politically motivated prosecutions.  Killian worked as an Assistant District Attorney for four years before starting a small solo law practice in rural Tennessee.  He has also  worked, at various times, as a junior college criminal justice professor and, for the past 17-years, as the City Attorney of Monteagle, Tennessee. He has described himself as having been targeted for harassment by the Ku Kux Klan in the 1960's because he was a member of the first integrated basketball team at South Pittsburg High School.

While Killian certainly has a unique expertise in being a victim of racial intolerance, his expertise as a First Amendment scholar is open to question.   Killian cited a recent local controversy in which an  image of  a man pointing a shotgun into a  camera  - with the caption "how to wink at a muslim" - offended someone after it was shared on social media.  The image in question is   one of    thousands of similarilly and offensive memes that are shared through social media every day.  Eeven though they are often crude, rude and highly offensive they are nevertheless  protected by the First Amendment.  As a career prosecutor Killian should already know this.

If Killian had searched the DOJ website for guidance, he would have discovered a speech on "Transforming the Law on Freedom of Expressiom” that was given earlier this year  by Assistant Attorney General Thomas E. Perez at a  conference held in Kuala Lumpur, Malaysia.  Perez accurately cited the correct legal standard when he explained that "not every ugly bigoted thing that someone says is a threat that is punishable under our laws.   To be punishable, the statement must be what the courts call a true threat, a serious threat to commit an unlawful act of violence, as opposed to efforts to annoy or engage in political hyperbole."  Perez even mentioned the controversy over the building of the new Mosque in Murfreesboro, Tennessee when he tried to explain that"[f]ree speech can sometimes even serve the cause of equality and harmony when the motive of the speaker is the complete opposite . . .:

Despite the long history of racism in America that I described earlier, our Courts have held that the First Amendment permits white supremacists to march through Jewish and African-American neighborhoods wearing offensive symbols that express their hateful beliefs.   While some have questioned why this sort of speech should be protected,   in the United States we have found almost invariably that public expressions of hateful beliefs draw larger and more powerful expressions of racial and religious equality and harmony.  You will see, for example, a march by neo-Nazis that draw a dozen or so participants met with a peaceful interfaith vigil of hundreds of counter-demonstrators.

Perhaps U.S. Attorney General Eric Holder would also benefit from reading Perez's speech.  In 2010, Holder made a number of speeches to Islamic-American organizations in which he promised to use the power of the U.S. Department of Justice to protect Muslims from what he described as "rising anti-Muslim hate."  Killian's statement  goes much further, and mark the first time a U,.S. Attorney has warned the public that using social media to spread information inflammatory against  or offensive to Muslims could result in their being charged with a violation of the Federal civil rights laws.  Holder's 2010 statements raise the question of whether  Killian is just a  rogue U.S. Attorney or the point man in a broad-based nationwide clamp-down on offensive and inflammatory "hate speech" (such as the "Innocence of Muslims" video that the Obama administration falsely claimed was the cause of the attack on the U.S. consulate in Benghazi by al-Qaida affiliated terrorists).

Free speech advocacy groups should take Holder and Killian's extra-legal threats of "hate speech" prosecutions seriously.  They should demand that Killian release prosecution guidelines for the type of "hate speech" he plans to prosecute, or release a statement that he understands the holdings of the relevant Supreme Court cases, such as Brandenberg v. Ohio, and that has no intention of initiating prosecutions based on the examples he provided which are clearly protected by these precedent-setting United States Supreme Court decisions.  Otherwise, Killian's statements to the Tullahoma News, that "[w]e need to educate people about Muslims," can only be viewed as a cynical and ham-handed attempt to chill free speech with extra-legal threats to the public via the media.