Does spray-painting “intifada” and “divest now” on a someone’s home, then posting about it online, count as a threat? What about throwing a jar with noxious chemicals through a window?
The federal charges against a Milwaukee medical student raise that question about the line between protected political speech and a “true” threat. The recently unsealed indictment alleges Ahmet Kerem Korkaya was part of a group of eight pro-Palestinian activists who conspired to “transmit threats” to University of Michigan leaders and local businesses.
The indictment argues the activists used the internet to plan the vandalism of leaders’ homes and buildings, and that their alleged acts – graffiti messages, leaving handprints of red paint on walls and throwing jars into windows – constitute threats.
Free speech experts explained there’s a high bar for someone’s political expression crossing the line into a crime, and they weighed whether the case rises from state vandalism and trespassing charges to the level of a federal conspiracy.
“Political speech enjoys the highest level of First Amendment protection,” said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. For 250 years, she said, the U.S. has erred on the side of protecting political speech even when it’s hyperbolic or emotional.
If the allegations made in the indictment are true, the activists likely did go outside the bounds of their First Amendment protections to commit illegal acts of vandalism and trespassing, said Aaron Terr, director of public advocacy for the Foundation for Individual Rights and Expression. The question is whether those acts amount to a conspiracy to threaten violence, he said.
“Even if they’re vandals, it’s another thing to prove they’re vandals who intended to physically harm anyone,” Terr said.
These questions swirl as critics argue the indictment serves as another example of President Donald Trump’s administration crackdown on pro-Palestinian protesters and universities following the 2024 campus encampments and the Oct. 7, 2023, Hamas attacks on Israel, which launched a war in Gaza.
Whether or not prosecutors win convictions on all counts, “the harassing effect of these charges is enough to chill the protests,” said Howard Schweber, a retired University of Wisconsin-Madison political science professor and a free speech expert.
What rises to the standard of a ‘true’ threat?
The 63-page indictment offers a range of of statements the activists are alleged to have made in the aftermath of the Oct. 7 attacks. In some statements, the activists “urge” or “demand” the University of Michigan to cut financial ties with Israel. In others, they say they “will not stop” and “you cannot hide.”
The spray-painted messages mentioned in the complaint were largely short, common slogans from the protest movement at the time, including some expletives, calling for a free Palestinian state, an “arms embargo now” and to “cut ties with genocide.” The words “coward” and “complicit” were painted on the home and sidewalk of the university president.
Still, in other statements – private texts exchanged on the Signal app – Korkaya is alleged to have texted a co-defendant that the University of Michigan president’s “entire family is now on my hit list.” He also allegedly texted that he was going to slowly “poison” a member of the university’s board of regents.
Prosecutors may have included those texts, in the introductory section of the indictment, to try to establish the defendants’ motive or state of mind, or as evidence of the conspiracy, experts said.
The courts will assess whether the statements rise to the standard of a “true threat,” which is not protected by the First Amendment. That means it has to “convey an intention that would be understood by a reasonable listener to perform violent acts on a particular person or group,” Schweber said.
In Schweber’s view, the indictment has “dozens and dozens” of statements “that clearly do not fit this standard.” It will be argued in court whether there are some statements that rise to that level, he said.
The context matters.
A landmark Supreme Court decision from 1969 speaks to that. An anti-Vietnam war protester said if he were drafted and made to carry a rifle, “the first man I want to get in my sights is L.B.J.” The court found that in context, it was crude political rhetoric during a rally, not a willful threat against the president.
“You can’t just look at the words that are used. You have to consider the intent behind them and how they’d be understood,” Terr said.
Activists face federal conspiracy charges, not state-level vandalism counts
The defendants may argue that their statements were purely political speech, intended to be hyperbolic, and “nobody could reasonably be expected to act on” it, Kirtley said.
At the same time, “they’ve got all these vandalism charges,” Kirtley said. Prosecutors may argue they weren’t just speaking rhetorically.
Terr said it’s hard to say whether prosecutors will be successful in the cases. It will likely depend on the quality of their evidence. Prosecutors were able to bring the case in federal court by tying the vandalism and trespassing to the activists’ communications on the internet, which is the jurisdiction of the federal government.
Korkaya had an initial appearance in the Eastern District of Michigan on June 15. Magistrate Judge Kimberly Altman released him on a $10,000 bond, which he was not required to pay up front and would pay only if he violated the terms of his release.
Altman ordered him not to leave his home between 8 p.m. and 8 a.m., to surrender his passport, and to restrict his travel to the eastern districts of Michigan and Wisconsin. His parents and his in-laws live in Michigan, his attorney told the judge during the hearing.
Sophie Carson is a general assignment reporter who reports on religion and faith, immigrants and refugees and more. Contact her at scarson@gannett.com or 920-323-5758.
This article originally appeared on Milwaukee Journal Sentinel: Did campus activists’ vandalism amount to ‘true’ threats? Free speech experts weigh in
Reporting by Sophie Carson, Milwaukee Journal Sentinel / Milwaukee Journal Sentinel
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By Sophie Carson, Milwaukee Journal Sentinel | USA TODAY Network
