Tag: tactics

As the federal government’s chief prosecutors, United States attorneys wield significant power. The Constitution charges them with using that power to ensure “that the laws be faithfully executed.” And as any reasonable federal prosecutor would know, the First Amendment bars them from abusing their power to intimidate government critics.

But one U.S. Attorney, Edward R. Martin Jr., doesn’t seem to have gotten the Constitution’s message or taken his oath seriously. Instead, Martin has emphasized political grandstanding and chilling dissent. Even though he’s been in office for only a few weeks, he’s unleashed the power of his office to go after speakers critical of Department of Government Efficiency, Elon Musk, and Supreme Court justices. And more troublingly, Martin has threatened to “chase” those critics “to the ends of the Earth,” sending a clear message: Shut up, or else. 

So FIRE is here to remind Ed Martin — and any other prosecutor thinking about following Martin’s lead — that threatening government critics is not only inexcusable, it’s unconstitutional.

Let’s start with a fundamental principle: Criticizing the government is not a crime. It’s free speech. And the First Amendment fiercely protects it. In fact, the First Amendment protects a lot of sharp-edged political rhetoric. That’s true whether you’re an elected official, a college student or faculty member, or just somebody posting on social media. 

Of course, the First Amendment doesn’t protect true threats. But there’s a narrow legal definition of true threats, per the Supreme Court: statements intended “to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Only if speech meets that exacting standard — and the speaker knew or ignored a real risk their statement would be “viewed as threatening violence” — can prosecutors like Martin target it. If not, it’s protected by the First Amendment.

No reasonable listener could conclude Garcia was donning brass knuckles and seriously expressing, over CNN’s airwaves, an intent to beat up Elon Musk.

Above all, in no case does an American’s protected speech turn into a “threat” just because a prosecutor disagrees with it, doesn’t find it funny, or dislikes his political pals being criticized. Any other outcome would empower the government to intimidate or jail political opponents simply by labeling dissent a “threat.” Those authoritarian tactics call to mind places like China and North Korea, but they have no place in the United States of America. 

That’s why two weeks ago, FIRE joined a letter to Martin penned by the Freedom of the Press Foundation and Demand Progress. We expressed concern over posts by Martin on the social media platform X that appeared to promise prosecution against DOGE critics. As the letter pointed out: “Threatening to file frivolous charges against Americans and vaguely insinuating that wide swaths of constitutionally-protected speech and activity could invite criminal investigations and prosecutions” defies both the First Amendment and Martin’s professional and ethical obligations.

Rather than heed that letter, Martin has doubled down. Yesterday, he opened a federal investigation targeting two members of Congress — part of what Martin dubs “Operation Whirlwind” — for past public statements that Martin claims threatened fellow government officials. But none of the statements come close to an unprotected true threat.

Martin’s inquiry into Sen. Charles Schumer of New York reportedly centers on a March 2020 remark the Democratic minority leader made at an abortion rights rally outside the Supreme Court: “I want to tell you, Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” (Schumer’s remarks are the namesake of Martin’s “Operation Whirlwind.”)

And Martin’s office is investigating Rep. Robert Garcia of California for a comment the Democratic congressman made last week during a CNN interview about Elon Musk. Garcia, who posted the letter he received from Martin on X, said: “What the American public wants is for us to bring actual weapons to this bar fight. This is an actual fight for democracy.”

It’s not a close call: Neither statement meets the definition of a true threat. Each is core political speech, fully protected by the First Amendment.

Schumer’s remark is plain old political hyperbole. Sure, saying justices will “pay the price” and “won’t know what hit them” as a result of their decisions might be described by some as intemperate. The statement drew criticism from other members of Congress, and even condemnation from the bench: Chief Justice John Roberts chastised Schumer for the tenor of his remarks, and Schumer in turn apologized. But in no way was it “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” let alone grounds for a federal investigation, nearly five years after the fact.

The First Amendment also protects Garcia’s political rhetoric — and again, it’s not a close call. Garcia’s comparison of the current political moment to a “bar fight,” requiring “actual weapons” for “an actual fight for democracy,” is plainly metaphorical, not literal. This is especially clear from the context of Garcia’s remarks, made during a CNN interview about politics. No reasonable listener could conclude Garcia was donning brass knuckles and seriously expressing, over CNN’s airwaves, an intent to beat up Elon Musk.

Simply put, there’s nothing to investigate.

Neither Schumer’s nor Garcia’s remarks are true threats. If they really were actionable threats, our nation’s capital would be a far different place. From the top down, Washington is chock-full of politicians using charged language, allusions to fighting, and sometimes even explicit invitations to drop the gloves. That’s how it’s been since the beginning, as Patrick Henry and Thomas Jefferson would confirm.

If Martin really wanted to prioritize officials’ safety, he’s got plenty of actual work to do. He could start with the real bomb threats, death threats, and swatting attacks federal lawmakers and officials have reported receiving over the past year. Instead, he’s targeting standard-issue political rhetoric from partisans on the other side of the aisle.

It’s bad enough when a dean of students distorts the line between protected speech and true threats. But a federal prosecutor? That’s indefensible — and dangerous to a free society.

That all leaves one conclusion. Martin’s “Operation Whirlwind” is a political stunt — and a dangerously unconstitutional one, threatening to blow a chilling wind across our nation’s political debate. Government investigations that target plainly protected expression violate the First Amendment. And any reasonable government official, especially a federal prosecutor, would know as much.

To be sure, Martin’s not the first prosecutor to target protected political speech in recent months. Last November, Arizona Attorney General Kris Mayes launched an investigation into then-candidate Donald Trump’s sharp-but-protected comments about former Rep. Liz Cheney. Mayes was as wrong to do so then as Martin is now.

“Whatever one might think of Trump’s rhetoric here, it’s not a true threat,” wrote FIRE’s Aaron Terr at the time. “It’s constitutionally protected political speech.” The partisan coordinates may have flipped, but the same conclusion holds.

Other government officials have followed the same playbook. For instance, FIRE could fill a book with examples of campus administrators shutting down plainly protected student and faculty speech by claiming it was somehow “threatening.”

Take student Hayden Barnes, expelled for a Facebook collage criticizing his university’s plan to spend $30 million on a new parking garage. Or Austin Tong, barred from campus for his anti-communist Instagram post commemorating the anniversary of the Tiananmen Square massacre. FIRE has defended faculty members disciplined for “threats” for caustic but protected criticism of both President Trump and Black Lives Matter protesters. We’ve even seen students and faculty punished for obvious jokes and political satire. The list goes on and on.

Here’s the bottom line: When government officials cynically mislabel protected speech as a “threat” to silence speech with which they disagree, it’s classic censorship that the First Amendment forbids. It’s bad enough when a dean of students distorts the line between protected speech and true threats. But a federal prosecutor? That’s indefensible — and dangerous to a free society.