Watch What You Post On Facebook

By Dee Wampler

Brian Dutcher stated on Facebook that he was going to kill former President Barack Obama and was convicted of making a credible threat even though he only had sling-shot in his van. He had repeated his plan to law enforcement ahead of a presidential visit. [1]

Dutcher had told on the social media for several years that he had planned to assassinate Obama, he repeated his plan to several people the day before the president was to arrive in Wisconsin including the police and Secret Service who interviewed him following a tip.

President Obama was scheduled to give a speech at the University of Wisconsin-La Crosse on July 2, 2015.  Dutcher posted on his Facebook page: “that’s [sic] it!  Thursday I will be in La Crosse, hopefully I will get a clear shot at the pretend president.  Killing him is our CONSTITUTIONAL DUTY!”  Later posts reprised the theme.  In one, Dutcher added that ‘I have been praying on [sic] going to D.C. for 3 months and now the usurper is coming HERE. . . . pray for me to succeed in my mission.’”

In another Facebook post case, a video posted to Facebook showed Dutcher rapping and holding a firearm with the caption, “Real Thugz bout date, get at me.  Bang, bang!!!!!!!!!” was properly admitted at his trial for illegal firearm possession.

The description was apt.  During his two-hour interview with the Secret service, a remarkably candid Dutcher claimed that is was his biblical and constitutional duty to assassinate the President, boasted that he could kill a person with a sling-shot (one was later found in his van, though Dutcher had no other weapons).

A true threat does not require that the speaker intend to carry it out, or even that he have the capacity to do so.[2]    The prohibition against threats to the president protects against the fear they engender as well as the risk that they may be carried out.   The law does not criminalize offensive jokes or political hyperbole – bad taste, in other words, is not a crime.[3]

[1] US vs. Dutcher  (7th Cir. 2017); U.S. v. Rempert, 100 Crim. Law 604 (8th Cir. 2017).

[2] Virginia v. Black, 538 U.S. 343, 360 (2003) (First Amendment); United States v. Parr, 545 F3d 491, 498 (7th Cir. 2008) (18 U.S.C. § 2332a, prohibiting a threat to use a weapon of mass destruction against a federal government building).

[3] Watts v. United States, 394 U.S. 705 (1969); United States v. Fuller, 387 F3d 643, 647 (7th Cir. 2004).