I serve, in one of my many roles as an attorney, as a municipal prosecutor. In that capacity, I was recently asked to prosecute criminal charges against someone for engaging in free speech online. The complainant was a retired police officer who filed the charges against someone over two Facebook incidents: one in which the defendant called him something like a “piece-of-s*** Democrat” during a public spat on the complainant’s Facebook wall, and another in which the defendant privately messaged the complainant with the “F” word and remarked that he probably got tossed into lockers as a kid.
It was juvenile. It was profane. It was also, clearly, not criminal. It was the sort of nonsense you see on social media all the time, and frankly, a rather tame version of it. But the retired officer went down to his local station, filed charges, and the case landed on my desk.
So you know what I did? I threw it out.
And this guy kicked and screamed about it. He tried lecturing me on case law, none of which he understood (which is especially worrisome considering this guy had been a police officer), and maybe he’ll try to get someone with influence over my municipal contract to find another prosecutor. I don’t know and I don’t care, because I’m not going to criminalize free speech. Period.
I was polite. I told him: “I’m sorry about the unpleasant exchange you had with this person, which is an unfortunately common occurrence on social media, and increasingly elsewhere too. Nevertheless, free speech is a fundamental right, and often results in annoyance. Letters to the editor are often very annoying. But unless there was a ‘purpose to harass,’ and it results in an ‘intolerable interference with a person’s reasonable expectation to privacy,’ having an unpleasant exchange—even one that uses the ‘F’ word—is not criminal, and I recoil at the thought of a society where it is.”
He replied, sarcastically, “Well I guess I’ll just have to wait until I’m physically attacked then.”
“No,” I said. “You don’t. But you do have to wait until he commits a criminal act before he faces criminal charges. And there was no criminal act here. Just an admittedly profane exercise of free speech.”
You’d think that would be obvious. And yet, this wasn’t the first time I’ve encountered something like this. I once represented a small business owner who responded to a negative online review on Yelp by defending his business and disputing the customer’s version of events. That customer then retaliated by filing criminal harassment charges. Instead of dismissing the case outright, the prosecutor in that case asked the customer what he wanted to happen. The customer replied: “I want him to spend 30 days in jail,” which was the maximum penalty for that sort of thing.
That case actually went to trial. Thankfully, we won. But it never should’ve gone that far. My client never should’ve faced the prospect of jail time, and had to endure all the stress and expense associated with that.
I was reminded of these again recently when I read yesterday about a case in the UK where two parents—Maxie Allen and Rosalind Levine—were arrested in front of their children by six police officers. Their crime? Sending too many emails to their daughter’s school and criticizing the administration in a private WhatsApp group for parents. The school reported them to the police, who actually took action. The couple was fingerprinted, searched, and held for eight hours. Five weeks later, the investigation was dropped—no charges filed, no laws broken. But the message was clear: even expressing frustration in private can get you arrested.
And these are not isolated cases. A French Olympic boxer pressed criminal charges for online “hate” and “harassment” after people questioned whether they had a biological advantage in competition. In the UK, a man was arrested for referring to a police horse as “gay.” A teenager was arrested for calling Scientology a “cult.” A café owner was arrested for displaying Bible verses on a TV screen in his shop, in a nation that has a state church! A former F1 driver in Brazil was fined $1 million for using a racial epithet—not a crime, thankfully, but still a severe punishment for speech, however revolting that speech might be.
That us state unequivocally that a free society is superior to the alternative, and that if you wish to live in a free society, you must develop a taste for being offended. And yet, everywhere I look these days, the impulse to censor, to police, to punish mere speech is advancing—not just in dusty autocracies or theocratic backwaters, but in the very countries that once styled themselves as the keepers of Enlightenment values. And more often than not, it is paradoxically done in the name of defending democracy, when really, that’s just pretext for defending a ruling class, their values, and more importantly, their status.
The most direct way to undermine democracy is to attack free speech, either through intimidation, or outright criminalization. If people cannot speak freely—especially to criticize authority, institutions, or prevailing orthodoxies—then democracy ceases to function. The solution to offensive speech is not handcuffs, it’s more speech and thicker skin. That was the wisdom of our Founders, that’s the gain of the Enlightenment on which all others rest, and it’s a principle we abandon at our peril.
So let us be clear-eyed and unflinching. It’s imperative that we all do our part to resist the criminalization of speech—whether we are prosecutors, judges, jurors, or simply citizens. Because if we don’t stand up for free speech now, we will soon find ourselves unable to speak at all, except to ask permission.
