The U.S. Court of Appeals for the Fifth Circuit has by a narrow margin declined to reconsider its recent ruling overturning on First Amendment grounds a Louisiana law that makes it a crime to threaten public officials.
The decision, Seals v. McBee, focuses on Louisiana statute §14:122, which criminalizes “the use of violence, force, or threats” on any public officer or employee with the intent to influence the officer’s conduct in relation to his or her position.
The plaintiffs in the case, Travis Seals and Ali Bergeron, challenged the law after they were both arrested by police for violating the law after a neighbor accused them of assault.
Specifically, Seals alleged he was pepper-sprayed by arresting officer Brandon McBee after Seals threatened to make lawful complaints about the officer’s conduct. However, police alleged that Seals violently resisted and “repeatedly made threats of physical harm.” The charges against Seals and Bergeron were ultimately dismissed by the district attorney’s office.
Seals and Bergeron later challenged the law in federal court, alleging that it was facially invalid as overbroad and content-based. The trial court agreed with the plaintiffs, declaring that §14:122 was overbroad, and enjoined Louisiana from enforcing the law’s prohibition on threats.
The Louisiana Attorney General’s Office appealed the decision to the Fifth Circuit, where it was affirmed by a panel of three judges who noted that “the meaning of ‘threat’ is broad enough to sweep in threats to take lawful, peaceful actions—such as threats to sue a police officer or challenge an incumbent officeholder.”
The Louisiana Attorney General’s Office then moved for the full Fifth Circuit to rehear the case. But the rehearing vote was 8-8, meaning the full court won’t take it up. It prompted a dissenting opinion from Judge Edith Jones, who wrote that the plaintiffs did not have standing to challenge the statute.
“My esteemed colleagues wish to ensure that the Louisiana statute criminalizing intimidation against public officials by ‘violence, force, or threats’ is not arbitrarily used to stifle constitutionally protected speech. So do we all,” Jones wrote.
But Jones noted that Seals failed two prerequisites for standing to file the challenge to the statute.
“He did not suffer ‘injury’ as the Supreme Court has explained it, and he did not sue the only party against whom federal courts could provide ‘redress,’” Jones wrote.
“Because of the threshold lack of justiciability and serious federalism problems presented in this opinion, our court should have undertaken to correct the panel errors en banc.”
Kearney Loughlin, a Lafayette attorney who represents the plaintiffs in the case, is pleased the Fifth Circuit did not vote to reconsider the panel’s decision overturning the law.
“Free speech is very important and this kind of speech—complaining about government, public officials, and police officers—the court has treated this as the most important kind of free speech,’’ Loughlin said. “This is what the First Amendment is all about—complaining about government and getting public officials to change jobs if you think that’s the appropriate thing to do.’’
Colin Clark, an assistant Louisiana attorney general who defended the law before the Fifth Circuit, declined to comment on the decision. A representative from the Louisiana Attorney General’s Office did not immediately return a call for comment.