On May 27, just two days after George Floyd died at the hands of the Minneapolis Police Department, an activist from St. Louis decided to drive the 540 miles north to the Twin Cities to participate in the protests there.
“We promise to do our very best to be safe and not do anything to get arrested," Mike Avery wrote on Facebook.
Three days later, the FBI arrested Avery for encouraging rioting across a handful of Facebook posts, according to his lawyer, Marleen Suarez. FBI agents had been reading his and other protesters’ social media posts looking for “potential flashpoints for violence,” according to police records.
Avery is one of four known people across the United States indicted on charges of incitement to riot solely on the basis of social media posts, according to federal court records. One man was charged for posting a crude napalm recipe that is widely available online. His charges were dropped several days later. Another man was questioned by the FBI for jokingly tweeting that he was the local head of antifa — a loose anti-fascist and left-leaning political movement with no clearly-defined organization, structure or leadership.
Taken together, the cases offer some insight into how federal law enforcement continues to monitor online speech related to social movements and pursue what legal experts say is a fairly aggressive approach to prosecution.
The charges against Avery were suddenly dropped without explanation Wednesday.
Court records show that FBI agents had seized on a post from May 29 in which Avery described a “red action” he was organizing for the next night, a term commonly used in activist circles to indicate that protesters may be violently confronted by police or arrested. He subsequently encouraged followers to “get to Ferguson PD right now,” to join a protest at the Ferguson, Missouri, police station.The U.S. Attorney’s Office in St. Louis did not immediately respond to requests for comment.
Suarez said she did not expect such a sudden reversal for her client, and underscored that there was no plea deal.
“He’s a little bit upset as to what happened over the last two weeks" she said.
Avery was charged with a rarely-invoked federal law from 1968 known as the Anti-Riot Act and was held without bail.
“He hopes that his experience exposes some of the persecution that has happened against protesters. It’s a clear violation of his constitutional rights, both freedom of speech and freedom of assembly," Suarez said.
Since the protests started, federal investigators have been trawling through Facebook, Twitter, Instagram and other social media channels, looking for rioters and looters, according to FBI affidavits submitted in four cases reviewed by NBC News. The FBI has used undercover accounts to infiltrate activist groups, as Politico reported, while other times they use software to search for specific keywords in public posts or carry out manual searches.
The FBI did not respond to a request for comment.
For years, this type of social media monitoring by both federal and local law enforcement has attracted criticism from researchers and civil liberties groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, among others. for the lack of oversight and the chilling effect it can have on free speech.
“There is no legal framework in place around the police monitoring of social media,” said Faiza Patel, co-director of the Brennan Center's Liberty & National Security Program. “One of the big issues we have is very little transparency around what they are doing, what tools they are using.”
Even during the heyday of the recent wave of protests, Trump again reiterated that antifa was an “instigator of violence,” even though no federal criminal cases brought since Floyd’s killing have incorporated any antifa-related allegations. As recently as June 9, the president again pushed an antifa-related conspiracy that appears to have no basis in reality.
Patel said that by labeling antifa as a domestic terrorist organization, even without legal basis, the Trump administration is helping to “shift organizational priorities and investigative techniques,” allowing for broader surveillance powers, even if there isn’t a legal basis for an official designation.
FBI surveillance has also ended up focusing on people who were not part of protest organization efforts.
Chandler Wirostek, 24, a college student, said he was surprised to receive a call from the FBI after he jokingly tweeted that he was the antifa leader in Charlotte, North Carolina.
As first reported by The Intercept, he wrote the tweet as a response to the news that Barr had announced that the movement was engaged in domestic terrorism.
“I was trying to show solidarity and thought it would be interesting to see the FBI try to prosecute someone using a terrorism statute. It seems like they have made a declaration that antifa is a terrorism orgnization without legal backing,” he said.
“I have tweeted stuff at the CIA before, making jokes about surveillance, and they never respond,” he said. “It definitely has a chilling effect on speech.”
After answering the agent’s questions, Wirostek was not arrested.
In St. Louis, federal prosecutors initially charged a homeless man, Marcus Hunt, for “distribution of information relating to explosives, destructive devices and weapons of mass destruction” for posting on Facebook a recipe for a crude version for napalm — one that is already widely available online, including on YouTube.
Javad Khazaeli, a former Department of Justice and Department of Homeland Security attorney who is now in private practice in St. Louis, said the cases against Avery and Hunt were weak.
“I’ve read the complaint in Avery and I’ve read the motion to dismiss in Hunt,” he said. “If everything written in those is true and that’s all the information they have against these guys, I can’t understand how that’s enough to go forward.”
Prosecutors dropped the charges against Hunt on June 11.
Besides Avery, three other men were charged with violating the Anti-Riot Act on the basis of their social media posts: Ca'Quintez Gibson of Peoria, Illinois; Carlos Matchett of Atlantic City, New Jersey; and Shamar Betts of Champaign, Illinois. All of their cases are pending.
Avery, Gibson, Matchett, and Betts were all charged with violating 18 U.S. Code § 2101, a specific section within the landmark 1968 Civil Rights Act signed into law by President Lyndon Johnson.
This portion of the law has its own name, the “Anti-Riot Act,” or the “H. Rap Brown Act,” named for the one-time leader of the Student Nonviolent Coordinating Committee, who was later charged with inciting a riot in Cambridge, Maryland in July 1967.
Legal experts say that even in the immediate years after its passage, the law has been fraught with problems. Unlike its state-level counterparts, the federal law does not require any evidence of imminent lawless action, and it may also conflict with First Amendment rights protecting freedom of speech.
Brendan Roediger, a law professor at St. Louis University, said that his research has shown that federal indictments on the Anti-Riot Act have only been brought four times between 1970 and 2018.
Roediger, who said he’s known Avery — the St. Louis man indicted under the Anti-Riot Act — for years, said that Avery’s speech on Facebook is “not even close to the line.”
“I think the Anti-Riot Act has been dead for 50 years because everybody knows that it’s unconstitutional and always has been,” he said. “But even if you imagine a world where it’s not unconstitutional, I don’t think Mike violated it.”
Additionally, some law professors say such a law can make people wary of speaking at all.
“A federal prosecution for anything is an extremely big deal,” said Greg Lipper, a First Amendment lawyer based in Washington, D.C.
“Once the indictment happens, maybe the person is eventually cleared but it can be a long and expensive and scary process. Even an unsuccessful indictment is chilling someone’s speech.”
CORRECTION (June 19, 2020, 4:40 p.m. ET): A previous version of this article misstated the location of the 1967 Cambridge riot. It was in Cambridge, Maryland, not Massachusetts.