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West Palm Beach, Florida resident Shannon Atkins is not much different than other terminally online leftists in the early days of the second Trump administration — he’s frustrated, handier with memes than he is with nuanced policy discussions and entirely unwilling to step away from the keyboard for any reason.
Atkins, though, might be the only such online warrior currently in jail after he was arrested Friday and charged with felony intimidation for a series of anti-Trump Facebook posts in the run up to Inauguration Day. But the posts — while certainly ill-advised considering that we’re still in the cultural wake of then-candidate Trump’s attempted assassination — represent a historically protected strain of political speech despite whatever squeamishness we might have regarding the specter of political violence.
As of this writing, Atkins’ public Facebook profile is still active and in glancing throughout his litany of posts, four appear to be evidence cited by West Palm Beach police supporting his arrest:
- A Jan. 14 reshare of a pro-Trump meme with pictures of Trump, Abraham Lincoln, Ronald Reagan, John F. Kennedy and Martin Luther King Jr. with the text, “All stood up to Democrats[.] All were shot.” Atkins’ added comment: “Unfortunately one is still alive[.]”
- A Jan. 19 post: “America needs one good bullet to be saved [.] [shrugging emoji] [crying laughter emoji]”
- A Jan. 19 reshare declaring Inauguration Day as a “day of mourning.” Atkins added comment: “Bullets please. Please Jesus! Save America[.]”
- A post asserted by West Palm Beach interim Police Chief Tony Araujo to exist but is no longer on Atkins’ Facebook: “I’ve been banned from X because I said I hope and pray someone kills him. We haven’t had an assassination in years.”
As Araujo said at the news conference announcing Atkins’ arrest, the posts were “violent rhetoric, political views and his opinion aimed at the president.” And I agree entirely in that assessment — the posts certainly seem violent. Maybe even unpleasant or upsetting depending on your political leanings.
But the First Amendment caselaw clearly protects Atkins’ posts in this situation.
At an anti-Vietnam War rally on the National Mall on Aug. 27, 1966, 18-year-old Robert Watts said to a group of protesters, “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” For that statement and that statement alone, Watts was arrested, charged and convicted on one federal felony count of threatening the life of the president. In overturning his conviction, the Supreme Court agreed that Watts’ statement was only a “very crude offensive method of stating a political opposition to the President” and that it did not represent a “true threat,” which is the constitutional line of demarcation between merely violently themed speech and that speech which can be reasonably interpreted as a statement promising harm to another individual.
The contrast between Atkins’ posts and other protected violent rhetoric is most apparent when stacked next to what we might more readily concede are threats. For example, in August of last year, Virgina resident Frank Carillo was arrested for making a series of threating posts on the conservative social platform GETTR, including one directed at then-current Vice President Kamala Harris that said she “needs to be put on fire alive” and “I will do it personally if no one else does it I want her to suffer a slow agonizing death.” Since the caselaw has only gotten more permissive since Watts, there’s a reasonable argument that even that sort of fever dream-inspired nonsense is protected speech given that it clearly stems from a place of political opposition. For now, though, it is enough to note that whatever Carillo’s speech might be, it is of an entirely different magnitude and (probably) type than Atkins’.
Along with the unsigned opinion announcing the Court’s decision in Watts, Justice William O. Douglas wrote his own concurring opinion that traced the English history of laws against compassing the death of the king — laws that, while in theory may have been written to protect a corporeal man, were invariably used against anyone who dared show disrespect toward the incorporeal symbol of the monarchy or the state. “Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution,” Douglas concluded.
It is simply not a crime to wish the president of the United States illness or death — even death by assassination. When then-Missouri state Sen. Maria Chappelle-Nadal posted on Facebook in 2017 that “I hope Trump is assassinated!,” she did not face criminal charges, only widespread political condemnation. Why? Because in our jurisprudence there is a difference between saying (in most contexts), “I hope someone shoots the president,” and “I hope someone shoots the president, and that person will be me.”
In the fullness of time, perhaps that distinction will mean freedom for Atkins.
For now, however, he remains charged with felony intimidation…along with cocaine possession and attempting to smuggle contraband in the jail.
Those last two?
Unfortunately for Atkins, there’s no First Amendment argument there.
