When Grand Traverse County Commissioner Ron Clous flashed his rifle while a resident spoke at an online public meeting, it caused an outcry in the community.
Now the resident, Patricia MacIntosh, is suing the county and Commissioner Clous in federal court. She argues Clous threatened her, and now she’s too intimidated to speak at subsequent county government meetings. She says that violates her First Amendment rights.
During the meeting, held weeks after the U.S. Capitol insurrection in January, MacIntosh criticized a decision to make the county a gun sanctuary and asked the commission to denounce the Proud Boys. That’s when Clous left the screen and returned with a rifle. At the same time, the chairman of the commission, Rob Hentschel, threw back his head and laughed.
Professor Nancy Costello, director of the First Amendment Law Clinic at Michigan State University, watched the recording of the meeting and reviewed the complaint filed in district court. She thinks the case has merit, but there’s one obvious drawback.
“The fact that it’s on Zoom is problematic,” Costello says. “The threat to her wasn’t imminent right then. But could it intimidate her enough that she wouldn’t want to go forward to speak at these meetings again?”
“That’s totally possible,” Costello says, and she thinks the case will depend on this argument.
How does this involve the First Amendment?
The First Amendment protects several freedoms — speech, religion, press, assembly, and the right to petition the government. The last right is lesser-known, and not often litigated.
It ensures the right to criticize the government. Costello says this was a big deal to the framers of the Constitution. “When you go all the way back in our history, we wanted to have the right as colonists to criticize the government of England.”
That’s what MacIntosh’s claim is based on. She had been criticizing her local government.
What does she need to win?
First, MacIntosh has to prove her speech was protected by the Constitution. “I think that’s easily done here,” says Costello.
Then, she has to show Clous’ actions “caused her to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity.” Basically that she’s afraid to speak again in front of the commission because she feels intimidated.
And third, that Clous’ action was motivated by her comments. (Clous has essentially already admitted this.)
“If she can prove these things, she can win,” says Costello. “It doesn’t mean though that it’s as simple as it sounds.”
That’s because Clous’ “speech” or action as a public official is also protected under law. He can criticize, make false accusations, or even defame a member of the public. But he’s not allowed to threaten, coerce, or intimidate if his actions suggest imminent harm will follow.
What could be the county’s defense?
Clous has a few options to defend himself, Costello says. He could say this wasn’t intimidation — he was nowhere near MacIntosh, and they were both in the comfort of their own homes. And he didn’t point the gun into the camera at her, he just held it.
He also could argue that holding the rifle was “hyperbolic speech,” or speech that is “so outrageous that it is not to be believed,” Costello says. That’s protected — to an extent — under the First Amendment.
How have judges ruled on previous cases like this?
Costello could only find one other case related to the right to petition the government that involved a public official showing a gun. In that case, an appeals judge (Neil Gorsuch, now a Supreme Court justice), said that the case had enough substance to be reconsidered.
“They highly suggested that a wielding of a weapon was retaliation,” says Costello. “That’s exactly where this is going to be decided.”
