The images of men in body armor, armed and masked in parking lots watching Maricopa County, Arizona drop boxes is pretty hard to stomach. Could there be any conduct more designed to intimidate voters dropping off ballots than masked men with guns? Yet District of Arizona Judge Michael Liburdi refused to issue an injunction.
In his 14-page ruling, Judge Michael T. Liburdi found that while “many voters are legitimately alarmed by the observers filming” at ballot boxes in Maricopa County, there was no proof that the group, Clean Elections USA, had encouraged acts of violence or posted personal or identifying information online.
“While this case certainly presents serious questions,” Judge Liburdi wrote, “the court cannot craft an injunction without violating the First Amendment.”
Does the First Amendment protect voter intimidation? Well, in a way, it does.
The contentious events surrounding the 2020 presidential election sparked an onslaught of speculation related to the validity and legitimacy of the electoral process. One such theory gained significant online prominence following the release of the 2000 Mules film. Primarily based on anonymized cellphone location data, the film tells the story of a shadowy network of “ballot mules” working to influence the 2020 election outcome by collecting fraudulent absentee ballots and strategically depositing them in early voting drop boxes throughout key electoral states.
Inspired by the film, Ms. Jennings founded CEUSA and formulated a plan of action—#Dropboxinitiative2022—with the purpose of deterring so called “ballot mules” from using drop boxes. Using social media, Ms. Jennings encouraged supporters and affiliates to gather near drop boxes in groups of “[n]o less than 8 people” to track and deter these supposed “mules.”
Granted, the “2000 Mules” claim has been debunked as baseless nutjob nonsense, but this is America and people are entitled to believe baseless nutjob nonsense. And so they believe, as they decide that sitting in parking lots awaiting ballot mules who never show, wearing body armor because there really aren’t a lot of places to wear it when there are no insurrections planned, that they are patriots doing good things instead of flaming nutjobs cosplaying commando.
The evidence in the record shows that Defendants’ objective is deterring supposed illegal voting and illegal ballot harvesting. Ms. Jennings’ social media posts demonstrate that she believes the presence of her volunteers alone would convey messages to these supposed “ballot mules.” The message is that persons who attempt to break Arizona’s anti-ballot harvesting law will be exposed. On this record, therefore, the Court finds that a reasonable observer could interpret the conduct as conveying some sort of message, regardless of whether the message has any objective merit.
It may be no more realistic than deterring space aliens from landing their flying saucers and stuffing drop boxes, but their objective, to prevent illegal voting and ballot harvesting, unlawful under Arizona law, is a lawful one. And their presence, in costume, is intended to send a message to any space alien or ballot harvester “not on my watch.” The message may be wrong-headed and misguided, but the First Amendment isn’t limited to protecting expression that’s rational.
Additionally, it is well-established that there is a “First Amendment right to film matters of public interest.” Fordyce v. City of Seattle (9th Cir. 1995). The Supreme Court has recognized a right to gather news. Branzburg v. Hayes (1972). And the public has a First Amendment right to “receive information and ideas.” Richmond Newspapers v. Virginia (1980) (citation omitted); see also First Nat’l Bank of Boston v. Bellotti (1978) (“[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”). This right to receive information exists regardless of that information’s social worth. Stanley v. Georgia (1969).
The right to film in public enjoys robust support when it’s taken of cops, and for good reason. The reason is that what happens in public is public, and may be recorded for good reason or bad, since who’s to say which is which? Whether because it’s newsworthy, or believed to be criminal, or just because someone want to film things of interest, the law is clear that there is a right to film in public. So these armor-clad men taking pictures of the people dropping off votes and their car’s license plates falls within the protection of public filming.
But what about committing the crime of voter intimidation? Surely this violates Section 11(b) of the Voting Rights Act.
Plaintiffs have not provided the Court with any evidence that Defendants’ conduct constitutes a true threat. On this record, Defendants have not made any statements threatening to commit acts of unlawful violence to a particular individual or group of individuals. There is no evidence that Defendants have publicly posted any voter’s names, home addresses, occupations, or other personal information. In fact, Jennings continuously states that her volunteers are to “follow laws” and that “[t]hose who choose to break the law will be seen as an infiltrator intent on causing [CEUSA] harm.” Jennings’ social media posts also admonish volunteers to remain outside the statutorily prescribed seventy-five-foot voting location radius.
Furthermore, the record contains evidence of Jennings’ social media posts instructing her affiliates not to engage with or talk to individuals at the drop boxes. Even if these statements are mere window dressing, a reasonable listener could not interpret Ms. Jennings’ social media pronouncements that alleged “mules” will “shrink back into the darkness” following her drop box initiative as true threats.
In parsing the details of what’s happening in parking lots, Judge Liburdi “smurfs” the arguments, dealing with each independently rather than as a part of a whole, and largely ignoring a couple highly significant details. These aren’t just a bunch of guys associating with good if nutty intentions to express their disapproval of people committing a crime that never happened.
These are guys in body armor. These are guys in masks. These are guys carrying guns, which may be protected but are still threatening because they can be used to kill people. To dismiss that these guys intend to intimidate voters by their conduct, garb and weapons because they’ve yet to shoot anyone doesn’t make their presence less of a “true threat.” If they’re entitled to watch the drop boxes just in case a flying saucer lands, they need not be masked, armed and armored.
But they came, not just ready for battle but with their identities concealed so they can’t be held accountable when battle is joined. When their exercise of constitutional rights crosses over to conduct that violates the law, its protection ends. The “true threat” doesn’t require that we wait until there’s blood on the street.
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