Were his social media rants free speech or illegal threats?

By Nicole Hong

Two days after the attack on the U.S. Capitol, a 37-year-old man living in New York City posted a video online titled “KILL YOUR SENATORS.”

The man, Brendan Hunt, was not in Washington on Jan. 6. But in the 88-second video, he said that “we need to go back to the U.S. Capitol” ahead of President Joe Biden’s inauguration and “slaughter” members of Congress, according to the criminal complaint.

“If anybody has a gun, give me it,” he said. “I’ll go there myself and shoot them and kill them.”

Now, the question of whether the video and three other social media posts by Hunt crossed the line from free speech into illegal threats is at the heart of a federal trial starting this week in Brooklyn.

This is the first federal trial in the country that will force jurors to grapple deeply with the events of Jan. 6, diving headfirst into the national debate about how much the government should police violent rhetoric in the wake of the Capitol attack.

Hunt became part of the Capitol breach’s sprawling aftermath as law enforcement officials not only arrested hundreds of rioters who stormed the Capitol but also charged people with making online threats around the attack. As officials in Washington consider new ways to combat violent extremism, including a possible domestic terrorism statute, Hunt’s trial could be a bellwether of how authorities balance the pursuit of serious threats with constitutional protections for political speech.

“These types of threats are particularly dangerous when made in a charged political environment that has already led to the overrunning of the United States Capitol and the interruption, for the first time in United States history, of the certification of a presidential election,” federal prosecutors in Brooklyn said in a court filing last month.

Hunt faces one count of threatening to murder members of Congress, which carries a maximum sentence of 10 years in prison. In December, Hunt posted on Facebook urging a “public execution” of prominent Democratic politicians, including the House speaker, Nancy Pelosi, Rep. Alexandria Ocasio-Cortez and Sen. Chuck Schumer, according to prosecutors.

Hunt’s lawyers have described the case as a groundbreaking prosecution, arguing that the government was trying to criminalize Hunt’s political opinions. Hunt had no weapons, no plans to carry out violence and no affiliations with organized groups, his lawyers said. He was ranting into the vast internet void, they argue, with no expectation that anyone would act on his words.

“Seen in context, the posts are more consistent with intoxication than insurrection,” his lawyers wrote.

Jan Rostal, a federal defender for Hunt, said in a statement that the First Amendment encouraged political debate “in the town square, not in secret, so bad ideas can get tested.”

“This case could have serious implications for freedom of speech on social media,” Rostal said.

Although Hunt had been posting menacing statements on social media since early December, he was not arrested until Jan. 19, the day before Biden’s inauguration. Hunt has been in jail since his arrest.

The trial will wade into an unsettled area of law that has become especially urgent with the explosion of incendiary political speech in recent years. One of the central disputes at Hunt’s trial will be whether a “reasonable person” would have viewed his social media posts as a serious threat to kill members of Congress.

“The courts have said we’ve got to leave a lot of room for dissent, including dissent that’s raised in violent terms,” said Eugene Volokh, a law professor at the University of California, Los Angeles. “But how much room is a very important question.”

To convict Hunt, prosecutors must prove that he was not just joking or exaggerating. They must show that he made the statements with the intention of either interfering with the official duties of members of Congress or retaliating against them for certifying the 2020 election results.

Prosecutors have said that they may call Capitol Police officers as witnesses to testify about what happened on Jan. 6 and how they reacted to Hunt’s social media posts.

The trial will require jurors to parse through Hunt’s web of political beliefs to understand his motivations. During jury selection, jurors were asked whether they have strong opinions about the 2020 election or about supporters of former President Donald Trump that would prevent them from being fair and impartial.

Prosecutors will show that Hunt, a fervent supporter of Trump, was furious about the outcome of the 2020 presidential election and believed members of Congress were “traitors” for supporting an election result that he viewed as illegitimate.

Using Hunt’s social media comments and private text messages, prosecutors will argue that his statements were deliberate threats motivated by white supremacist and anti-Semitic beliefs.

In the video that Hunt shared two days after the Capitol riot, he used references that are known to white supremacists, prosecutors said. The video was posted on BitChute, a platform with less restrictive moderation policies than YouTube, which has cracked down on the spread of hate speech and conspiracy theories.

In a court filing, Hunt’s lawyers said he removed the video within two days of posting it. It was a “fellow conservative” who saw the video on BitChute and alerted the FBI, they wrote.

The defense said Hunt held more nuanced political views than the government’s portrayal. He has posted on social media that he voted for President Barack Obama in 2008 and was later involved in the Occupy Wall Street movement, according to a court filing from his lawyers.

“While we do not agree with many of Hunt’s views, we will fight to the death his right to express them,” his lawyers wrote.

On the social media site Parler, prosecutors said, after another user suggested acting peacefully following the Capitol riot, Hunt wrote: “lets go, jan 20, bring your guns #millionmilitiamarch.”

Law enforcement officials have historically been careful about bringing criminal charges hinged solely on speech, often waiting to see if the person making troubling statements online takes concrete steps toward violence. But in the weeks after Jan. 6, prosecutors around the country signaled that they were less willing to wait after witnessing how online rhetoric turned into the real-world violence that unfolded at the Capitol.

During the pandemic, Hunt had been working from home in Ridgewood, Queens, making about $57,800 a year in his clerical job with the New York state courts system. He was terminated from the job after his arrest.

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