This story is small potatoes, given everything going on in Minnesota (and everywhere else). But if the essence of protecting civil liberties is stopping the small violations before they become big violations, it matters. Plus, it happened in my backyard.
Two Miami Beach detectives showed up at the home of local activist Raquel Pacheco to question her about a Facebook post critical of Miami Beach Mayor Steven Meiner. Pacheco recorded the encounter:
And here is the text of the post:
FIRE sent a letter to the chief of police.
Here is the chief’s statement, insisting he, not the mayor, decided to send the officers:
Given the real, ongoing national and international concerns surrounding antisemitic attacks and recent rhetoric that has led to violence against political figures, I directed two of my detectives to initiate a brief, voluntary conversation regarding certain inflammatory, potentially inciteful false remarks made by a resident to ensure there was no immediate threat to the elected official or the broader community that might emerge as a result of the post. The interaction was handled professionally and without incident.
I had serious concerns that her remarks could trigger physical action by others.
At no time did the Mayor or any other official direct me to take action.
The Miami Beach Police Department is committed to safeguarding residents and visitors while also respecting constitutional rights.
This is laughable. No one could believe that post comes close to any First Amendment line. The post was neither inflammatory nor inciteful, nor could a rational person read it as an immediate threat to the mayor. Moreover, the officers’ behavior during the encounter contradict the purported reasons for the visit. Concerns for how listeners might react justify watching the conduct of listeners acting badly; they do not justify talking to the speaker or confirming that Pacheco wrote it, neither relevant to the behavior of others. Defining incitement narrowly focuses law enforcement on bad actors, not speakers. Law enforcement (and other government) officials wanting to be taken seriously must be required to do better.
Of course, serious efforts to protect the public through thoughtful legal analysis is not the point. The point is to intimidate. The point is to demonstrate power and reach of the government officials–the police who showed up, the chief who sent them there, the mayor who flagged this–and to make them think twice before posting similar things. And the point is to flash impunity, knowing that qualified immunity will protect them or that the minimal damages she can recover can be baked into the cost of doing municipal business.