FBI arrests of protestors based on social media posts worry legal experts
On May 27, just two days after Minneapolis police killed George Floyd, a St. Louis activist decided to drive 540 miles north to the twin cities to take part in the protests.
"We promise to do our best to be safe and do nothing to be arrested," wrote Mike Avery on Facebook.
The FBI arrested Avery three days later because, according to a lawyer, Marleen Suarez, he had encouraged unrest in a handful of Facebook posts. FBI agents had read the social media posts of his and other demonstrators and searched for "potential hot spots for violence," the police said.
Avery is one of four well-known individuals in the United States who, according to the Federal Supreme Court, have been charged with instigating revolt only on the basis of social media contributions. A man has been accused of publishing a raw napalm recipe that is widely available online. His charges were dropped a few days later. Another man was interviewed by the FBI because he jokingly tweeted that he was the local head of Antifa - a laid-back anti-fascist and leftist political movement with no clearly defined organization, structure, or leadership.
Taken together, the cases provide insight into how federal law enforcement agencies continue to monitor and track online language related to social movements, which legal experts see as a fairly aggressive approach to law enforcement.
The charges against Avery were suddenly dropped without explanation on Wednesday.
Court records show that FBI agents confiscated a May 29 post in which Avery described a "red action" he was organizing for the next night. This term is often used in activist circles to indicate that demonstrators may be violently confronted or arrested by the police. He then encouraged the followers to "come to Ferguson PD immediately" to join a protest at the Ferguson, Missouri police station. The U.S. prosecutor's office in St. Louis did not immediately respond to requests for comments.
Suarez said she did not expect her client to be reversed so suddenly, and stressed that there was no plea deal.
"He's a little upset about what has happened in the past two weeks," she said.
Avery was charged with a rarely-mentioned 1968 federal law known as the Anti-Riot Act and was held on bail.
"He hopes that his experience will reveal part of the persecution that has taken place against demonstrators. It is a clear violation of his constitutional rights, both freedom of expression and freedom of assembly, "said Suarez.
Since the beginning of the protests, federal investigators have been searching Facebook, Twitter, Instagram and other social media channels for rioters and looters. This is evident from the FBI's affidavits filed in four cases reviewed by NBC News. The FBI has used covert accounts to infiltrate groups of activists, Politico reported, while sometimes using software to search for certain keywords in public posts or to perform manual searches.
The FBI did not respond to a request for comment.
For years, this type of social media surveillance by federal and local law enforcement agencies has been criticized by researchers and civil rights groups, including the American Civil Liberties Union and the Electronic Frontier Foundation. for the lack of control and the deterrent effect it can have on freedom of speech.
"There is no legal framework for police social media surveillance," said Faiza Patel, co-director of the Brennan Center's Liberty & National Security Program. "One of the big problems we have is the lack of transparency about what they do and what tools they use."
The arrests also come when President Donald Trump and Attorney General William Barr tried to blame "Antifa" for the recent violence in American cities.
Even in the heyday of the recent wave of protests, Trump repeated that Antifa was an "instigator of violence," even though no federal crimes since Floyd's murder included any Antifa allegations. As late as June 9, the president pushed again for a conspiracy related to Antifa that does not appear to have any basis in reality.
Patel said that by designating Antifa as a domestic terrorist organization, even without a legal basis, the Trump administration is helping to "shift organizational priorities and investigative techniques" and enable broader surveillance powers, even if there is no legal basis for an official term.
FBI surveillance ultimately also focused on people who were not part of the protest organization's efforts.
Chandler Wirostek, 24, a student, said he was surprised to receive a call from the FBI after jokingly tweeted that he was the Antifa leader in Charlotte, North Carolina.
As The Intercept first reported, he wrote the tweet in response to the news that Barr had announced that the movement was involved in domestic terrorism.
"I tried to show solidarity and thought it would be interesting to see the FBI try to persecute someone with a terrorism law. It appears they have made a statement that Antifa is a terrorist organization with no legal support, ”he said.
"I've tweeted and joked about surveillance at the CIA before and they never replied," he said. "It definitely has a deterrent effect on language."
After answering the agent's questions, Wirostek was not arrested.
In St. Louis, federal prosecutors initially accused a homeless man, Marcus Hunt, of "disseminating information about explosives, destructive devices, and weapons of mass destruction" because he posted a recipe for a raw version of Napalm on Facebook - one that is already widely available online spread, also on YouTube.
Javad Khazaeli, a former attorney at the Department of Justice and the Department of Homeland Security who is now in private practice in St. Louis, said the cases against Avery and Hunt were weak.
"I read the complaint in Avery and the request for dismissal in Hunt," he said. "If everything that is written in it is true and that is all the information they have against these guys, I cannot understand how it is enough to get ahead."
Prosecutors dropped Hunt's charges on June 11.
In addition to Avery, three other men were charged with violating the Anti-Riot Act based on their social media posts: Ca'Quintez Gibson from Peoria, Illinois; Carlos Matchett from Atlantic City, New Jersey; and Shamar Betts of Champaign, Illinois. All of their cases are pending.
Avery, Gibson, Matchett and Betts have all been charged with violating 18 U.S. Code 2101, a specific section of the landmark Civil Rights Act of 1968, which was legally signed by President Lyndon Johnson.
This part of the law has its own name, the "Anti-Riot Act" or the "H. Rap Brown Act", named after the former chairman of the Student Nonviolent Coordinating Committee, who was later indicted for rebellion in Cambridge, Maryland in July 1967 has been.
Legal experts say that the law was problematic in the immediate years after it was passed. Unlike its counterparts at state level, federal law does not require evidence of imminent lawless measures and may also conflict with the rights of the First Amendment to protect freedom of expression.
Brendan Roediger, a law professor at St. Louis University, said his research had shown that between 1970 and 2018 there were only four charges against the Anti-Riot Act.
Roediger, who said he had known Avery - the St. Louis man accused of the Anti-Riot Act - for years, said that Avery's speech on Facebook was "not even close to the line".
"I think the Anti-Riot Act has been dead for 50 years because everyone knows it's unconstitutional and always has been," he said. "But even if you imagine a world where it's not unconstitutional, I don't think Mike hurt her."
In addition, some law professors say that such a law can cause people not to speak at all.
"Federal persecution for everything is an extremely big deal," said Greg Lipper, a First Amendment lawyer based in Washington, D.C.
“Once the charge is up, the person may be resolved at some point, but it can be a long, expensive, and scary process. Even an unsuccessful charge scares a person's speech. "
CORRECTION (June 19, 2020, 4:40 p.m. ET): In an earlier version of this article, the location of the 1967 Cambridge Uprising was misrepresented. It was in Cambridge, Maryland, not Massachusetts.
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