Preface: I believe it ought to be illegal to make encouraging threats against law enforcement on Youtube regardless of what any document or Supreme Court verdict opinion says. Screw all that.
I am neither a lawyer nor did not sleep at a Holiday Inn Express last night, but I did take Constitutional Law at a party school, so here’s my verdict regarding the state of Georgia arresting this angry black woman who made a youtube video declaring, while waving around a pistol, open season against cops.
The closest Georgian law I can find is Title 16, Section 16-11-37 which does not seem to prohibit what she did in her video, and that she was perhaps arrested in order only to conduct a perp walk. A perp walk is the term for when cops or DAs tell the media to show up with cameras rolling when they trot out a suspect in cuffs, which parenthetically I personally don’t think is usually appropriate or even “American” in that it clashes with innocent until proven guilty, that anyone can be arrested easily and that showing up on the news wearing cuffs can ruin one’s life and prejudice a jury.
Regarding decisions and opinions of the federal Supreme Court related to limitations of free speech with respect to such criminal and terroristic threat laws, I believe the two relevant cases are Watts and Elonis. In Watts, the Court makes a distinction between “true” threats and political hyperbole. This lady’s video strikes me as obvious political hyperbole; reasonable cops would not fear that she would actually go outside to unload some magazines (not clips). Though maybe there is a weapons charge here – I don’t know why she was arrested.
In Elonis, a more recent SCOTUS decision, the bar of whether or not such laws are constitutional at whether a “reasonable” person would interpret threats made across state lines.
Now, how to reconcile the Court’s decisions to limit free speech with the First Amendment which guarantees Youtube freedom, the Court can indeed does do whatever it wants, though state judges may thumb their noses at Court decisions which can launch a local case to provoke the federal Supreme Court to revisit the precedent they had set, possibly resulting in their effectively overturning their previous decisions (and therefore what people call the law of the land even though it’s just another case and not a law), letting a guilty verdict against this Youtuber stand were it a free speech case and not something like illegal weapons possession.
Though, given the political climate, I doubt the Georgia district attorney (or a federal one) will opt to prosecute, and just wanted a perp walk. But that could make Georgia and its taxpayers vulnerable to an unlawful arrest lawsuit in which this woman could rake in some serious cash money.
While I truly don’t care for the black lives matter movement; but if I’m right here, I think what the state has already done to her with the perp walk and questionable arrest is more wrong than what she did to Georgia and to the United States.