As Joseph and I continue editing our forthcoming article on Extreme Risk Protection Order laws–and how these laws can withstand due process challenges–more legal scholarship on these laws is cropping up. Out now is an article raising concerns about the implications of such laws that look to First Amendment protected activity as a factor in the analysis.
From the Introduction (footnotes omitted):
This Article examines another troubling aspect of red flag laws yet to be thoroughly addressed in law journal articles that have analyzed these statutes. That issue is how these laws implicate First Amendment speech rights when an individual’s writings, words, posts, and even media consumption may be used as evidence to obtain an ERPO. First, this Article analyzes how speech and speech activities traditionally safeguarded by the First Amendment may be turned against an individual under red flag laws. Second, this Article evaluates how the term “threat” as used in these statutes may be interpreted loosely and colloquially by both law enforcement officials and judges without applying the Supreme Court’s “true threat” doctrine. The Article then offers five suggestions for how these issues might be cured. The authors’ goal is not to have red flag laws jettisoned from the pages of code books. Rather, it is to ensure that freedom of expression is not unnecessarily sacrificed or chilled by laws that serve the patently compelling interests of preventing bloodshed and saving lives.