The Aftermath of Ferguson: Is Free Speech Still Protected?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 9, 2014

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It seems everyone has a comment on the civil implications and racial overtones of the Ferguson riots after a grand jury declined to indict Officer Darren Wilson. Governors and celebrities alike have focused on the racial overtones associated with all of the surrounding events and have speculated about how to help this community move forward after such a tragic series of events. Interestingly, very few commentators, if any, have pondered the implications of these events on the concept of “Free Speech.” The Ferguson lootings actually reflect a textbook question in every constitutional law class— how much of a person’s speech is constitutionally protected? Historically, when a person shouts “FIRE!!” in a movie theatre, thereby causing panic and injuries, they could be held criminally or civilly responsible for the resulting injuries.

Words Have Consequences

RiotOver the last several years, public figure after public figure has learned that their statements, whether public or private, are not without a cost. The owner of the LA Clippers made comments in the privacy of his own home, which eventually subjected him to a fine and lifetime ban by the NBA. Paula Deen admittedly made racial comments years ago while running her restaurant. The Duck Dynasty guys and the Duggar Family have made public comments against gay marriages. Each celebrity or public figure faced a consequence for his or her statements. This is not to suggest that any of the comments made by these individuals were appropriate or not, but rather to note that none of the comments made by these individuals resulted in rioting. Every response to their comments or the revelation of their comments was non-violent. Their comments were not specifically designed to encourage physical harm to another person or their property. Yet, each was subject to a legal, moral, social, or financial penalty.

When is Speech Protected?

Ironically, the words by Michael Brown’s stepfather did incite a riot. Understandably, he was deeply hurt when he learned of the grand jury’s decision. However, he chose a set of public words that he had to have known would result in some harm to another person or their property: “Burn this b**** down!” Buildings have since been burned. Reporters have been assaulted. Innocent by-standers who had absolutely nothing to do with the grand jury’s decision were harmed. Some are now questioning whether this speech should also be constitutionally protected or whether a valid reason would exist to excuse the harm of the protected speech.

The Grand Jury System Fuels Frustration

The reason in this case would be a frustration with the criminal justice process and the grand jury system in particular. For decades, the grand jury process has frustrated victims and defendants. Even though the term includes the word “jury,” the grand jury process rarely involves the same protections as a traditional jury trial. A traditional jury trial is designed to protect a party’s due process rights and adheres to set rules of procedure. The grand jury system was designed to be a starting point for the criminal process. Instead of focusing on procedure and rights, a grand jury is charged with a substantive, “gatekeeper” function. The role of the grand jury is to decide if there is enough evidence to go forward. 

In a traditional jury trial, multiple parties could potentially participate and force the review of information potentially overlooked by the prosecutor or law enforcement. A grand jury’s information is limited to what is presented by the prosecution, or what is requested by the grand jury consistent with the subpoena power vested by their state. This is not to say that all prosecutors are shortsighted or hide evidence. However, prosecutors are subject to the same errors as any other litigant. Without a check or balance, the presentation of the evidence can be skewed or incomplete.

“Secret” Proceedings Fuel Distrust

Compounding the frustration, most states require grand jury proceedings to remain confidential. This means that victims and defendants alike are frequently left hanging as to the reasons a grand jury accepted or declined a case. Because they were not allowed to view the process, they cannot understand how a decision was reached, or mostly importantly, why. Many states only authorize the release of transcripts of grand jury proceedings in limited situations. Even with the release of transcripts, as in with the Ferguson grand jury, victims and defendants are foreclosed from an active participation in what is supposed to be a “truth finding” process.

The grand jury in Ferguson is not to blame for the lootings or the riots that followed their decision to not indict Officer Wilson. However, the process itself does bear some responsibility for contributing to an already contentious atmosphere of distrust. Some officials have called for the arrest and prosecution of Michael Brown’s stepfather. This is probably a natural “next step” considering the events that have unfolded. It will be interesting, however, to see if the same officials will also call for a revision of a grand jury system that fuels a secretive process within an otherwise public system of justice.

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