On Friday, May 3, 2024, the American Freedom Law Center (AFLC) filed a motion to dismiss the politically-motivated criminal case brought by the Oakland County Prosecutor against AFLC’s client, Andrew Hess.
As argued in the brief, the criminal charge plainly violates the First Amendment. As a result, the case should be summarily dismissed.
Hess is charged with “making a terrorist threat,” a felony offense that carries a maximum penalty of 20 years confinement and a $20,000 fine.
During a contentious ballot recount in Oakland County last December where allegations of election improprieties were ignored by Oakland County election officials, Hess walked outside of the recount room and allegedly made the statement, “hang Joe for treason,” allegedly referring to Joe Rozell, the director of elections in Oakland County, according to the prosecutor’s office.
Following this alleged “threat,” Hess returned to the recount room and had multiple interactions with Rozell and other election officials without incident. Deputies from the Oakland County Sheriff’s Office were present, and even after speaking with Hess about the alleged comment, took no action against Hess whatsoever and allowed him to return to the recount room where he made a speech during the public comment period regarding the importance of election integrity.
One of the deputy sheriffs present during the public comment period stated the following in the case report: “While voicing his opinion to the board, [Hess] stated that what has transpired is considered treason and would leave it up to everyone to look up the punishment for treason.”
Indeed, all of Hess’s statements that day were political opinion or commentary, which are fully protected by the First Amendment.
While the alleged “terrorist threat” took place in December 2023, the Oakland County Prosecutor waited until April 1, 2024, to file a criminal complaint, demonstrating that the alleged safety concerns are fake and that politics are driving this prosecution.
As stated in the motion to dismiss:
This prosecution presents a clear and present danger to the First Amendment. It must be dismissed. In the United States, we have a profound national commitment to the principle that debate on public issues, which unquestionably includes elections and the conduct of elections, should be uninhibited, robust, and wide open, and that it may include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See infra. Prosecutions for engaging in such speech are barred by the First Amendment and MCL 750.543z, which codifies this fundamental protection as a matter of state statutory law.
We have a system of checks and balances under the Constitution for a reason. The judicial branch, including this Court, is a check on the power of the executive branch to prosecute a private citizen for conduct protected by the First Amendment. Without judicial vigilance, we have tyranny. The right to freedom of speech is one of our most precious freedoms, and it needs breathing space to survive. In a case involving the prosecution of pure speech, such as this one, the process is punishment as it causes a chilling effect not only on the speech of the defendant charged with a crime but on the speech of all private citizens who must now steer wide of the boundaries to avoid becoming ensnared in the prosecutor’s net. The courts have said time and again that it is always in the public interest to prevent the violation of a party’s constitutional rights. Consequently, immediately dismissing this case is not only in Defendant Hess’s interests, it is in the public interest. Justice and our Constitution require it.
A preliminary examination, which is a hearing to determine whether Hess should be “bound over” to the Circuit Court to stand trial on the felony charge, is scheduled for May 30th at 9 am before Judge Ronda Gross in the 50th District Court in Pontiac, Michigan. Hess’s motion to dismiss will be heard the same day.
Br in Support of Mot to Dismiss - People v Hess--Final--5-2-24