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'Courts make a pretty broad exception for speech that’s arguing back': Professor discusses death threats, other First Amendment issues

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A Norman Police Department squad car sits outside the police department March 31, 2018. 

Alleged death threats against Norman Mayor Breea Clark could be protected by the First Amendment, while the use of racist imagery by a Norman police officer might not be, one expert said. 

On May 14, Clark filed a police report over a hostile Facebook post responding to the city of Norman’s reopening plan. The post read “Mayor (expletive), needs to be pulled out of office and tried on the court house lawn. … The problem with politicians, they don’t get hung in public anymore. … #bringbackpublichangings!” and was later traced back to Lexington Police Officer Eddie Zaicek. Zaicek initially denied posting the comment to the Norman Transcript, but later admitted to Norman police that he was responsible for the post.  

After investigating the incident, the Norman Police Department determined the post didn’t constitute a direct threat to Clark or the public and was protected by the First Amendment. 

Joey Senat, a mass communication law and multimedia journalism professor in the Oklahoma State University School of Media and Strategic Communications, said the Facebook post could be protected by the First Amendment if investigators determined it’s a case of political hyperbole. 

“Political hyperbole can be very exaggerated speech — it can be hateful speech,” Senat said. “Hate speech is still protected by the First Amendment.” 

Senat said that same sort of political speech was used in Kentucky over Memorial Day weekend when Second Amendment supporters gathered to celebrate constitutional rights but quickly turned to protesting Gov. Andy Beshear’s COVID-19 response. During that protest, Beshear was hanged in effigy — an action condemned by both Republican and Democrat leaders. 

“Should police investigate (cases like this)? Yes,” Senat said. “Does that mean just because he said that, that becomes a true threat? The police didn’t think so.” 

Senat said it’s significant that Jacob McDonough — a Norman police officer who compared the use of facial masks to Ku Klux Klan imagery in "Django Unchained" — emailed the comparison as part of his job capacity. He said McDonough could have fewer protections than Zaicek because he sent the comparison in official communication with other police officers, not on a personal social media account. 

“His rights will be different and somewhat more limited as a government employee, so the Norman police might decide that it was inappropriate, unprofessional speech by a police officer … and it could be punished that way,” Senat said. 

The NPD concluded its internal investigation of McDonough Wednesday with an announcement that he had violated department policy. The police department said in a statement that discipline for the officer was decided based on facts of the incident and feedback from the Norman Citizens Advisory Board, but details of the nature of the discipline wouldn’t be released to the public. 

Local officials in both Norman and Stillwater — the towns that house Oklahoma’s two flagship universities — have experienced hostility toward their requirements or recommendations of facial mask use. 

In Stillwater, an emergency proclamation requiring customers to wear masks in restaurants and stores was announced April 30. However, according to Stillwater City Manager Norman McNickle, so many employees were verbally harassed and threatened with physical violence by customers unwilling to follow requests to wear masks that the proclamation was amended three days later to only encourage mask use. 

In Norman, Facebook groups like “Reopen Norman,” where Zaicek posted his comment, have been hotbeds for angry and frustrated comments for  — and in some cases, ill wishes toward — local authorities. 

Senat said in general, these reactions seem to carry political weight and a message of defiance toward authority. To some extent, he said, that defiance is protected by law. 

“There’s some anger about it — people saying ‘I’m free, I don’t have to do this,’” Senat said. “They can argue back against government. … That’s part of our democracy is you can object and criticize and argue back against government. ... (Under the First Amendment), courts make a pretty broad exception for speech that’s arguing back — even if you consider it in a hostile manner — to politicians and government.” 

Norman Mayor Breea Clark said in a May 21 interview that she thinks COVID-19 has spread more quickly because of political polarization. 

“This never should have been a political issue,” Clark said. “This is a health issue. The fact that it has been politicized is very unfortunate, and sadly very American. We could have done better on so many different fronts, but this never should have been about politics. So that's very, very discouraging. But in ways, we've risen above it. I’ve partnered with mayors of different political affiliations from my own. And we'll continue to do so. But we need to leave politics out of public health.” 

Senat compared businesses requiring customers to wear facial masks to the requirement that many establishments have that customers wear a shirt and shoes. 

“These businesses that might be requiring it, I think, are entitled to set some standards for how their customers come in and behave,” Senat said. “And in the public health crisis, I’d say this is probably a reasonable requirement. If people don’t want to shop there, they’re welcome to go someplace else. That’s not government trying to control them.” 

He referenced a case in which the Supreme Court ruled in favor of a Denver baker who refused to bake a cake for a same-sex wedding because he felt that doing so would violate his religious beliefs, adding that choosing not to serve someone without a mask is similar in some ways to choosing not to serve someone because of their sexual orientation. 

“I think (people who are gay or lesbian) might say, ‘Well, geez, that’s interesting,’” Senat said. “‘We’ve been discriminated against by businesses for quite some time, and now you feel put upon because you have to wear a mask during a public health crisis.’”

Ari Fife is the OU Daily summer editor-in-chief and a sophomore journalism major minoring in international studies and political science. Previously, she served as a senior news reporter and was an SGA beat reporter.

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