Free speech and terrorism

In a post on the social media site Yik Yak in November, Mullen supposedly wrote ,“I'm gonna (gun symbol) the school at 12:15 p.m. today.” There are enough school shootings, enough mentally ill, chronically angry, psychotic people with guns that police acted swiftly to apprehend Mullen.

But terrorism?

In the wake of Sept. 11, terrorism has branded our collective psyche. Thirteen years removed from the attacks that leveled the World Trade Center, targeted the Pentagon and brought down an airplane in western Pennsylvania, we find our laws, government and culture have been shaped by fear.

Our response to terrorism has been government-sanctioned torture, offshore prison and rendition sites, indefinite detention, illegal surveillance by the National Security Agency, militarization of police forces and a new body of draconian laws.

In Michigan, as in other states, terrorism laws often overlap traditional criminal law. The statute officially known as the “Michigan anti-terrorism act” was enacted in 2002 and has not been changed since then. Some provisions deal with threats that reflect the general definition of terrorism: harmful biological substance, chemical devices and radioactive material.

But in an astounding overreach the law also defines terrorism as:

• An act that would be a violent felony under the laws of this state, whether or not committed in this state.

• An act that the person knows or has reason to know is dangerous to human life.

• An act that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.

It defines “dangerous to human life” as an action “which causes a substantial likelihood of death or serious injury.” A violent felony, according to the law, means the use, attempted use, or threatened use of physical force against an individual.

Where is the line between real terrorism and felonious criminal behavior? It's hard to find. With a law this broad, thousands of terrorist acts — felonies really — happen in Michigan each year. As a result, prisons are filled with thousands of uncharged “terrorists.”

Based on Michigan law, it is easy to charge Mullen as a terrorist. A conviction can mean 20 years in prison.

According to news reports, Mullen has acknowledged posting the shooting statement and calls his action “stupid.” While he didn't threaten any particular school, East Lansing and Williamson took actions.

As this case unfolds, there are many issues at play. Among them: Was it really an act of terrorism? What about First Amendment speech and overcharging by the Ingham County prosecutor?

First Amendment attorney Bradley Shafer weighs the merits of the terrorism charge in the context of other over-the-top speech.

“Do you know how many threats there are on the Internet every day? What is protected by the First Amendment and what isn't? These are not easy issues,” Shafer said. “As a country we need not to put people at unnecessary risk. But we do permit very coarse communication.”

While the state law provides police and prosecutors with sweeping powers, Shafer said terrorism charges should reflect a real threat.

“In his (Mullen's) posting he didn't say where he was going to shoot it up and he didn't identify any school. Literally, it could have been any school in the country.” Shafer explained a vague statement like the one attributed to Mullen could bring charges from prosecutors in any state or even from overseas. The federal government could also weigh in.

Shafer used Ted Nugent's President Obama death threat episode to illustrate how unstructured the terrorism prosecution can be. Speaking at an National Rifle Association convention in April 2012, Nugent proclaimed that “if Barack Obama becomes the president in November, again, I will be either be dead or in jail by this time next year.”

His implied threat prompted a Secret Service investigation, and, of course, nothing happened. The threat wasn't real. Also, Shafer cited Sarah Palin's 2010 “Time to take a stand” web site message with “crosshairs” attached to members of Congress, among them, Gabrielle Giffords, who was shot in a 2011 Tucson massacre. Palin said the crosshairs were really bulls-eyes.

In Michigan, either act could lawfully merit a terrorism arrest and prosecution based on the section of the law (Section 750.543b (iii)) that criminalizes intimidation or coercion or seeks to influence or affect the conduct of government or a unit of government. Certainly Obama and Giffords fall under the government provision.

In both cases, the First Amendment right to free expression prevailed. But as Shafer explained, it is difficult to know where to draw the lines.

And who draws them is equally important. Stuart Dunnings III, the Ingham County prosecutor, can overcharge in criminal cases to force plea bargains. An example would be his handling of the “improvised explosive device” case in East Lansing in 2009. Four students, stupidly, tossed a fireworks mortar into an East Lansing front yard, the kind that explode in the air in neighborhoods everywhere around July Fourth. No one was injured, there was no damage. They were arraigned on felony explosive charges that carried maximum sentences of up to 20 years in prison.

Twenty years for a setting off a firework.

Shafer says faced with extreme charges and the threat of long sentences, defendants cut their losses. “What choice to you give them? Prosecutors say if you don't deal with me on this crime, and if you are convicted, you will spend the rest of your life in prison.”

Of the four charged in the fireworks case, two students took misdemeanor plea deals and each received 18 months’ probation, 40 hours of community service and a $613 fine. The charges were dropped for another. But one of those charged, Nikolai Wasielewski, proclaimed his innocence, refused a plea and to the chagrin of the Prosecutor's Office opted for a trial. The risk paid off and the charges were dismissed, said his attorney, Mike Nichols.