A Nashville man could serve five years in prison for making violent threats against Tennessee law enforcement, even though some of what he said and posted online is protected by the First Amendment.
Robert Ellis Waddey pleaded guilty this week to posting an Instagram picture in 2015, of a pistol, with a Tennessee Highway Patrol car in the background. The caption read “gonna die lookin at his computer.”
The 22-year-old said the car was actually empty at the time. Which means the picture could technically fall under freedom of speech. Not simply because that allows people — to a point — to shoot their mouth off stupidly, says Ken Paulson. The head of the First Amendment Center in Nashville says the law is pretty clear.
"You have to intend to threaten [someone]," says Paulson. "You don’t have to actually intend to harm them; you have to intend to threaten them. And then you have to actually have a specific enough person that that person will feel fear."
That’s the difference between what’s called a true threat and hyperbole. Even though it isn’t clear whether the trooper whose car is in the picture ever felt threatened by Waddey, the post raised a red flag for Metro police.
They sent the case over to federal investigators, who found downloaded pictures of dead officers on Waddey’s phone — and that he’d made a menacing remark during a previous police interview for an unrelated charge.
The elements together demonstrated clear intent to the Acting U.S. Attorney for Middle Tennessee. Jack Smith says they also show Waddey violated federal laws.
"If someone like this actually did something to harm a police officer, and you were aware of all the things we’re aware of right now, you wouldn’t be surprised in the least," he says.
To Smith, that’s especially true today, when he says law enforcement is so under siege. But the federal prosecutor says he takes social media threats made by police equally seriously.