If a tree falls in the forest, does it make sound? If a right goes unrecognized and defied by the people charged with enforcing it, is it a right at all?
It's not always a philosophical question.
Anne King of Washington County, Georgia griped on Facebook that her ex-husband, Corey King, wouldn't go pick up some medicine for their sick child.
One of Ms. King's friends, Susan Hines, responded "POS — give me an hour and check your mailbox. I'll be GLAD to pick up the slack."
Anne King probably believed she had the perfect right to do that — or perhaps, privileged as she is to live in a country with broad free speech rights, she didn't think about it at all. She unquestionably had the legal right. But did she have a right that anyone in Washington County, Georgia was bound to respect? That question isn't as easily answered. That's because I've left out a crucial piece of information: Anne King's ex-husband is not just Corey King. He's Captain Corey King of the Washington County Sheriff's Department. And when it comes to American law enforcement, your right to free speech is more theoretical than actual.
In her federal lawsuit, Anne King contends that her husband, a friend in the Sheriff's Department, and a county "magistrate" put her in jail for her Facebook comment. According to her, Captain King filed a police report with his friend, Washington County Sheriff's Investigator Trey Burgamy. Washington County magistrate Ralph O. Todd — who is not a lawyer, and who ran unopposed last year — issued a warrant requiring Anne King and Susan Hines (who had responded on Facebook by suggesting Captain King is a "POS") to appear at a hearing. After a hearing at which Captain King was the only witness, Magistrate Todd caused a warrant to issue charging Anne King with criminal defamation: "SUBJECT DID, WITHOUT A PRIVILEGE TO DO SO AND WITH INTENT TO DEFAME ANOTHER, COMMUNICATE FALSE MATTER WHICH TENDS TO EXPOSE ONE WHO IS ALIVE TO HATRED, CONTEMPT, OR RIDICULE, AND WHICH TENDS TO PROVOKE A BREACH OF THE PEACE, SPECIFICALLY, SUBJECT DID MAKE DEROGATORY AND DEGRADING COMMENTS DIRECTLY AT AND ABOUT COREY KING, FOR THE PURPOSE OF PROVIDING A BREACH OF THE PEACE. Anne King also contends that Magistrate Todd threatened to "ban her from Facebook." King claims that Magistrate Todd undertook to explain his view of First Amendment law to the two women:
Hines asked the magistrate about her First Amendment rights. "You can call Mr. King a piece of shit to his face," the magistrate said. "You can even tell someone else you think he is a piece of shit. But you can't post it out for the public to see. That's defamation of character."
Of course that's not the law. Calling someone a piece of shit is a hyperbolic insult, not a provable statement of fact, and therefore can't be defamatory. In fact, directing it to someone's face is one of the few times it could possibly be illegal — such an insult, directed face to face to the person, is a rare possible example of "fighting words" that might be punished as a breach of the peace. (Amusingly, some courts would say such an insult cannot be fighting words if directed to Captain King because Captain King is a police officer and we presume police officers will not react violently to insults. That is the difference between a presumption and a fact.)
The warrant ordered by "Magistrate" Todd charged King for something that, on its face, is not and cannot be a crime. Georgia used to have a criminal defamation statute, and it appears that Magistrate Todd was trying to track its language. But the Georgia Supreme Court found the statute unconstitutional in 1982, and Georgia took the dead-letter law off the books in 2015. Even if the statute survived, Anne King's Facebook post could not constitutionally be prosecuted under it. This was a lawless charge. This is not a close call.
At the end of the hearing, sheriff's deputies arrested Ms. King and Ms. Hines. Ms. Hines was allowed to drive herself to jail, but deputies handcuffed Ms. King and transported her to jail. At the County Jail — of which, by the way, Captain King is the Commander — the women were fingerprinted and booked. The deputies struggled in vain to find a provision of the Georgia criminal code in their system to describe the arrest; there was none. Ms. King bonded out after about four hours. A few days later, Ms. King returned to court before — and I use this disparaging term very deliberately — a real judge. "I don't even know why we're here," that judge said before the state attorney dismissed the charge. Ms. King has not been formally charged or arrested again — though Captain King has told her "don't make the mistake of going to Facebook with your little shit you found to fuss about" and has suggested she could face "willful contempt" if she does so.
Anne King has sued Captain King, Investigator Burgamy, and Washington County for civil rights violations and various state torts. She can't sue "Magistrate" Ralph Todd because, despite the fact he's not a lawyer, he's cloaked by absolute judicial immunity. The statements above are merely her contentions. Moreover, the law governing suing state actors in federal court is complex, and the defendants will have many defenses to liability.
Anne King's story is not, by any stretch of the imagination, a rare one. Particularly with the rise of social media, law enforcement officers across the country have been abusing the legal system to retaliate against insults: from the police supporting Jim Ardis' petty and petulant revenge in Peoria, the Renton PD investigated satirical videos, and the Parma PD prosecuted a man through trial for a satirical account.
Anne King has First Amendment rights, in theory. Their nature and extent are well defined by the courts. It's straightforward to respect them. But what does it mean to say she has those rights? In Washington County, Georgia — population approximately 21,000 — with a hostile ex-husband a Captain of the Sheriff's Department, and with Ralph Todd as a magistrate, does she really have them in any meaningful way? What is a right, when the state defies it?
I reached out to the Washington County Sheriff's Office and the Washington County courts for a comment on this story without a response. Counsel for defendants returned an automatic email reply indicating that he is out of the country until next week.
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