Last month I was graced with correspondence from my esteemed Police1 colleague, Lt. Dan “The Training Man” Marcou, regarding recent “death to America” chants at protests in Dearborn, Michigan.
Dan shared that “back in the day” when he was policing unfriendly crowds in Wisconsin, anyone chanting “death to America” would’ve been “hooked up” and immediately taken to jail. He wanted my opinion about whether such an arrest would “fly” today — or would the speech be protected?
Dan also asked me about the chant, “What do we want?” “Dead cops!” “When do we want them?” “Now!”
Dan’s question presents two issues:
- Does the arrestee’s speech constitute a crime?
- Have courts applied the First Amendment to the same or similar speech?
To answer question 1, I asked Dan what offense(s) the chanters would have been charged with. He said “unlawful assembly” or “disorderly conduct.”
Do the chants constitute a crime?
DISCLAIMER: I do not intend, nor should this article be taken as legal advice. For that, talk to your local prosecutor or agency’s legal counsel. This is the considered opinion my friend, Dan, requested.
Let’s begin by recognizing that not all speech is protected by the First Amendment. Exceptions include:
- Libel and slander.
- Fighting words — must produce a “clear and present danger,” like inciting a riot; burning a U.S. flag doesn’t suffice.
- Obscenity — most is protected; must meet a high threshold to be unprotected.
- Child pornography — need not meet the high threshold of other pornography.
- Speech used to commit a crime — like perjury, extortion, harassment.
- Threats — must be targeted threats of harm or death.
- Commercial speech that is deceptive or fraudulent.
The standard for whether speech is protected has evolved to provide more protection. In 1919, in Schenck v. U.S., the Supreme Court said the First Amendment didn’t protect speech that incited a “clear and present danger.” (The case included Justice Oliver Wendell Holmes’ oft-quoted example of falsely shouting fire in a crowded theater.) In Brandenberg v. Ohio (1969), the Court narrowed this exemption so that speech must intend to incite “imminent lawless action” — like a riot — to not be protected.
An “unlawful assembly” in Wisconsin, where Dan policed, is three or more persons causing a disturbance of public order that it is reasonable to believe will cause injury to persons or damage to property unless it is immediately dispersed. It includes blocking or obstructing any private or public thoroughfares, buildings, or dwellings.
Upholding the constitutionality of this statute, the Eastern District Court of Wisconsin held that it did not authorize an arrest if the disturbance, injury, or damage is caused by reactionary onlookers, not members of the assembly.
Based on the language of the statute and the court’s interpretation, I don’t think the offensive chants, by themselves, would constitute unlawful assembly.
Disorderly conduct is a tougher call. It criminalizes conduct, in a public or private place, that is violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly, under circumstances that tend to cause or provoke a disturbance. The problem is that a chant that is indecent or profane to one person thus provoking a disturbed response is another person’s call to political action.
Wisconsin also criminalizes threats to cause bodily harm to a police officer. But the statute addresses specific threats of harm to specific officers — not a protest chant wishing all cops were dead.
How have courts evaluated comparable speech under the First Amendment?
The case law suggests that people’s violent reactions against repugnant speech — whether to persons or property — does not constitute a crime by the speaker. Even if the speech incited violence by sympathizers against the target of the speech, that must have been foreseeable and the intent of the speaker.
Chants expressing a desire to have police or a nation dead must also meet the Supreme Court’s “true threat” test to be criminalized. In Virginia v. Black (2003) the Court defined true threats as “statements where the speaker means to communicate a serious expression of an intent to commit” specific illegal violence.
In 2023, the Supreme Court reversed the conviction of Billy Counterman for stalking based on him sending more than a thousand online messages — many aggressive and intimidating — to musician Coles Whalen over two years. Whalen was terrified and had panic attacks. She eventually quit performing live.
Two Colorado courts held Counterman’s messages were true threats because a reasonable person would have feared for their safety, as Whalen did. Counterman argued he never intended to instill fear.
In a 7-2 decision, the Supreme Court held that the “reasonable person” standard did not sufficiently protect free speech. Someone might be punished for words meant as a joke or intended as hyperbole. The Court said the speaker’s intent must also be considered.
Even before Counterman, in Watts v. United States (1969), a Vietnam War protester was charged with threatening President Lyndon B. Johnson for saying at a rally, “If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.” The Court ruled Watts “had engaged in a crude form of political hyperbole” and his speech was protected.
There is a long history of “death to America” chants in numerous countries that have not resulted in our nation’s demise or incited immediate criminal conduct. That lends argument to protesters’ contentions that such speech is not intended nor reasonably foreseen to incite “imminent lawless action.”
Expressing a desire for a nation or all police professionals to be dead is distinct from a call or threat to kill.
Bottom line
The chants discussed here are repugnant, and so are flag and cross burning. But, in my opinion, the chants are protected speech in our country. (That’s also the opinion of conservative podcaster Pat Gray of Blazemedia.) This is a country I am proud to be a citizen of.
I am also proud of our nation’s police officers. As Lt. Dan wrote to me, “I feel strongly that officers around the country are handling these crowds as well and as professionally as officers nationwide have ever handled civil disturbances. I would be proud to have them on my team, back in the day!”
