EDITORIAL: Is it illegal to criticize the state’s coronavirus response?

The right to criticize the government forms the heart of the First Amendment’s speech protections. That’s why it’s odd Nevada officials believe they can successfully prosecute a man who used his Facebook account to fulminate over Gov. Steve Sisolak and his coronavirus restrictions.

Like many Nevadans, Las Vegas resident Steve Feeder was not happy when the governor shut down the economy in the early days of the pandemic. He frequently took to social media to vent his frustration. On about three dozen occasions, he flexed his muscles as a keyboard tough guy, urging people to arm themselves, form militias and to “fight back” in a “war” against the “tyrant,” Gov. Sisolak.

In late May, an investigator knocked on Mr. Feeder’s door. “His response was that his wife called him an idiot and that when I show up at his house that I was there for his rant,” Colter Earl of the state Department of Public Safety testified during an October hearing. “He described himself as very angry and upset regarding the state’s action in the COVID-19 response.”

Mr. Feeder was eventually charged with three misdemeanors: interfering with a public officer by threat, force or violence; publishing material inciting breach of peace; and provoking a breach of peace. Las Vegas Justice Court Judge Karen Bennett-Haron threw out two of the charges, while allowing the “publishing material” charge — based on a 110-year-old law — to proceed. Mr. Feeder has refused a plea deal.

Continued prosecution is a stretch, to say the least. The fact that the judge tossed two-thirds of the state’s case should raise a red flag for the government lawyers. Yes, there are limits to free speech. The courts have held that the Bill of Rights doesn’t protect true threats of violence. But there is — for good reason — a high burden the state must meet to show that threats were intended to become action. There’s no evidence that Mr. Feeder did anything other than post his incendiary bluster on social media.

Prosecutors admit such, yet argue that some “crazy person,” as Chief Deputy Attorney General Michael Kovac put it, could have read Mr. Feeder’s ramblings and acted on them “regardless of whether the defendant intended” that to happen.

But that’s a mighty thin blade of fescue to grasp in a First Amendment prosecution. Using Mr. Kovac’s minimal standard, virtually any pointed criticism of the government that advocates resistance could be subject to prosecution, chilling dissent and criminalizing political discourse. This should be concerning no matter your politics.

The state’s justification for pursuing this case is woefully inadequate. Mr. Feeder’s scribblings may have been amateurish and distasteful, but bombastic hyperbole must remain constitutionally protected as long as the First Amendment has a vestige of life and we continue to call ourselves a free society.