While Fulton County prosecutors delve into the criminal conspiracy involving the illegal swapping of the state’s electors, the Georgia attorney general’s office has secured its own criminal conspiracy indictment in Fulton County against individuals protesting a proposed training facility known as “Cop City”. The indictment characterizes this protest activity in terms that appear political rather than criminal, even referencing collectivism and anarchy as part of the justification for their action. Above the Law reports that this, among other factors, makes the indictment seem poorly formulated and troublingly broad in its implications for free speech and protest rights.
Legal expert Andrew Fleischman of Sessions & Fleischman, commenting on the sweeping philosophical descriptions present in the indictment document, seems to share this sentiment of skepticism and concern, which you can view directly from his tweet here.
The indictment appears to stretch beyond criminal acts alone, attempting to draw a picture of an entire movement constructed around committing crimes. The heart of the legal issue here, however, is whether the overt acts cited in the indictment – such as the distribution of flyers in a particular neighborhood – directly further the ultimate criminal goal. Constitutionally protected actions, even if they could be construed as part of a larger unlawful agenda, are not in themselves criminal. In this case, calling for illegal acts such as property damage is a crime, but it’s less clear how activities like leafleting – a common protest activity – ties into such an illegality.
The indictment includes a number of protected speech that could be considered “overt acts” in a criminal conspiracy. The problem, however, is that one indictment identifies the underlying criminal enterprise as election fraud, while the other seems to criminalize political protest itself. The latter implies an attempt to penalize speech, which is in direct contravention to constitutional protections.
This case seems to raise critical questions about the boundaries of free speech and protest in democratic societies, set against the backdrop of a contentious political landscape. It’s a developing story which any legal professional would do well to follow closely.