Heightened sensitivities and a law enforcement track record of overreaction has prompted a New York Sheriff's Office into actions that will probably result in at least one civil rights lawsuit. When students of a New York school decided to create a couple of videos and post them to Instagram, the Sheriff felt compelled to violate the students' Fourth Amendment rights after disregarding their First Amendment rights.
Three students face felony charges of making a terroristic threat for posting online two brief videos where they act out a school shooting in someone’s house.
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The Albany County Sheriff’s Office said the videos were made by Ravena-Coeymans-Selkirk students aged 10, 14 and 15 and posted to Instagram. They show a student with a fake gun barging into a living room and “shooting” two other students. In one video, students, who are all white, use a racial epithet.
Sheriff Craig Apple called the videos “very graphic, very racist and horrifying.”
Lots of movies, books, TV shows, and videogames contain "graphic and horrifying" content. Some even include "racist" dialogue, just as this video did. At no point did any of the participants mention a school, mention an intent to perform these acts at a school, or even tag other students/schools in the posting. It was simply a dramatization of events that happen far too often in this country.
The videos were noticed by a student of the school the three arrested students attended. No one's faulting the school for handing over the videos to law enforcement, but the sheriff's office should have recognized the students were engaging in protected speech, not issuing terroristic threats. A simple conversation about why the videos might be disturbing to others should have been the end of it. Instead, there are now three arrests and a bunch of civil rights lawyers pointing out exactly why these arrests should not have occurred.
Manhattan civil rights lawyer and television commentator Ron Kube said the videos don’t rise to the level of terroristic threat because there was no specific target or agenda. “This appears to be a wild overreaction driven by the legitimate concerns about school shootings,” Kube said Monday.
Civil rights lawyer Normal Siegel, former executive director of the New York Civil Liberties Union, also said there was no terroristic threat and that the videos appeared to be an attempt at acting.
“The arrests raise serious and substantial First Amendment concerns,” said Siegel. “Making a video is protected by the First Amendment.”
Content disturbing to others is present in a lot of content. Just because this dramatization happened to be produced by students and distributed by Instagram doesn't somehow entitle it to less First Amendment protection than a motion picture released by a major studio. Just because the participants happened to be school students doesn't mean their speech is less protected than someone with a multi-million dollar budget.
Sheriff Craig Apple's speech -- as moronic as it is -- is also protected by the same First Amendment he won't extend to these students.
“There’s been enough shootings going on around the country. This is despicable artistic expression, if that’s what it was.”
Sheriff Apple is free to hate the expressive speech. But he's not free to arrest people for speech he doesn't like. And all the "but what if a shooting actually happened?" excuses don't make this any less of a compound civil rights violation.
