November 19, 2020
From Indymedia Rochester (USA)

Almost entirely based on Facebook posts, a protester who attended Justice for Daniel Prude events was charged with Federal rioting charges.  The charges, which carry the potential of 5 years in prison and $250,000 in fines, are part of an effort to expand the use of the federal rioting act and limit freedom of speech protections.

The charges are based on an affidavit filed on Sept. 25 by FBI agent Jon T Denz.   The affidavit reveals a case built on a series of Facebook posts:

  • A link to a Huff post article, with the comment “burn this shit to the fucking ground”.
  • A recipe for a Molotov cocktail, with extra steps: light wick, aim at cop, throw.
  • A greeting of “Good morning to everyone ready to burn this whole fuckin country to the ground”
  • An smiley face emoji holding a Molotov cocktail
The alleged posts would certainly be objectionable to many/most people, but they also fall squarely inside protected free speech as decided in the case Brandenburg v. Ohio.  That decision states that unprotected speech must be “directed to inciting or producing imminent lawless action”, meaning that it can be directly linked to specific action at a specific time as opposed to general advocacy of action at some undefined point in the future.
This very reasoning was recently used to declare parts of the federal rioting act over-broad in a federal appeals court ruling this August.  The court ruled that the “statute sweeps up a substantial amount of speech that remains protected advocacy under the modern incitement test of Brandenburg v. Ohio, (…) speech tending to “encourage” or “promote” a riot.”  It’s hard to see how this doesn’t apply to the above posts.
The charges are part of a effort to land federal charges on protesters in order to ratchet up the potential penalties.  The federal rioting act requires the use of “any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television.”  The affidavit argues that posting on Facebook is using “a facility of interstate and foreign commerce”, which would be in line with other recent attempts to increase sentences by landing federal charges on protesters, for example arguing that using imported tequila to make a Molotov cocktail falls under “foreign commerce.

The FBI was initially brought in because the Monroe County Sherrif’s Office shared information with them indicating that the activist “espouses beliefs consistent with Antifascist (ANTIFA) ideology,” based on these items:

  • A profile picture with the words “Antifacist Action”.  This was an anti-fascist/anti-racist organization active in the 80s and 90s and disbanded in 2001.
  • A picture of them dressed in black with a helmet and goggles.  Wearing black is a common protest tactic used by many groups who want to avoid personal identification.  Wearing a helmet and goggles is common sense when the police are shooting rubber bullets and tear gas at the crowd.
  • A circle-A picture and the words and “Anarco-communist”.  Anarchism is a political wide-ranging political philosophy that is general opposed to facism.  Some strands of anarchism advocate violence for political ends, while others advocate pacifism.

This list indicates that when law enforcement uses the term “ANTIFA ideology” it does not refer to any particular group, organization, or set of tactics.  Instead it can appliy to anyone who opposes facism in an assertive way.

This ratcheting up of charges should be opposed by anyone interested in fighting for justice.  Even if the charges don’t stick, the uncertainty surrounding them serves as a form of punishment by itself.  They represent a warning and deterrent to anyone who may be interested in joining the protests.  Finally, they reflect the larger prison industrial complex that inflates sentences in order to threaten huge numbers of black and brown people with massive prison time in order to extract plea deals that involves comparatively less time, but still results in the US having the highest percentage of prison population in the world.