Monroe County resident Lee Lawmaster posted “86” on the official Facebook pages of several top Indiana elected Republicans to express his political disagreement. And an investigator from the Attorney General’s Office showed up on his doorstep to warn he might be indicted for threats.
Now, the American Civil Liberties Union of Indiana is suing on behalf of Lawmaster’s “protected political speech.”
The federal lawsuit was filed against Kurt Spivey, director of investigations for the Indiana Attorney General’s office, in his individual and official capacities.
Lawmaster posted “86” on the official Facebook pages of several Indiana elected officials, including Attorney General Todd Rokita, Lt. Gov. Micah Beckwith, and U.S. Sen. Jim Banks. The term is sometimes used to describe killing or eliminating someone. The ACLU argues it is slang “to throw out or get rid of.”
“(Lawmaster) reasonably believed that this expression of displeasure and his wish that the politicians be removed and replaced was protected by the First Amendment,” the complaint said. “Indeed, it is.”
“Mr. Lawmaster’s posts were not threats. They were numeric slang, and a form of political expression protected by the First Amendment.“
— ACLU of Indiana news release
A statement from Rokita’s office said “With death threats against elected officials being very prominent across the nation and in our state, the Attorney General and his family are a top target. There are — right now — two people being tried in separate Marion County cases for making violent death threats against the Attorney General. This is real, and our office takes true threats extremely seriously.
The posts came after the recent indictment of former FBI Director James Comey, who was prosecuted after posting a photo on social media showing seashells arranged to depict “86 47.”
The ACLU said none of Lawmaster’s posts included threats or calls for political violence.
“Mr. Lawmaster was incensed that James Comey is being prosecuted for a clear exercise of his First Amendment rights,” the complaint said. “Mr. Lawmaster is also opposed to many of the policies and actions of a number of Indiana representatives and believe they should be ‘thrown out’ of office and gotten ‘rid of.’”
The lawsuit claims Spivey came to Lawmaker’s home on May 1 to question him about the posts. During the interaction, Spivey told Lawmaster that his protected expression had “crossed the line,” warned that “we could easily indict you over this today,” and instructed him to “tone it down a little bit.”
The interaction was recorded by a door camera with both audio and video.
According to the complaint, Spivey also said he would “let this one slide” and indicated investigators could return if Lawmaster continued engaging in similar speech.
“Mr. Lawmaster’s posts were not threats. They were numeric slang, and a form of political expression protected by the First Amendment,” a news release from the ACLU said. After the confrontation, Lawmaster stopped posting “86” comments and ceased commenting on elected officials’ social media pages altogether out of fear of criminal prosecution.
Investigators with the attorney general’s office generally do not have police powers except in the Medicaid Fraud Control Unit.
The office generally can’t initiate criminal prosecutions. It does have limited concurrent jurisdiction with local prosecutors. A few examples are a homicide resulting from an unlawful assembly, consumer protection and public corruption by elected officials.
“Government officials cannot treat political criticism as a criminal threat simply because they disagree with it,” said Ken Falk, legal director at the ACLU of Indiana. “Mr. Lawmaster did nothing more than express his view that elected officials should be removed from office. Sending a state investigator to his home to warn him that he could be indicted for that speech is exactly the kind of government intimidation the First Amendment forbids.”
Rokita’s office said it was “pathetic” that the ACLU of Indiana is representing Lawmaster.
“Their mission these days has nothing to do with civil liberty — it’s just communism. We look forward to further draining the ACLU’s bank account by fighting and winning this case, just like we win most cases against this anti-American, deranged organization. ”
This article was written by Indiana Capital Chronicle editor Niki Kelly.