The West Virginia chapter of the American Civil Liberties Union is backing a New Cumberland man facing charges over posts he made on Facebook.
David Jones, 47, has asked the state Supreme Court to stop prosecutors from presenting a case against him to a Hancock County grand jury. Jones is charged with two counts of retaliation against a public official for posts he allegedly wrote on his Facebook page. Both charges are felonies.
Wheeling attorney Philip Sbrolla and the state ACLU call the posts political hyperbole, protected by the First Amendment.
According to a criminal complaint, State Police wrote that during an investigation they discovered a Facebook post written by Jones about former West Virginia Delegate Randy Swartzmiller. The post, written in June 2014, allegedly provided Swartzmiller's address and "advised criminals and crackheads" to go there to "terrorize and take personal effects," wrote Trooper M.S. White II. White filed the charges on July 1.
In another post the same day, Jones allegedly provided an aerial view of Swartzmiller's home and wrote asking "criminals and crackheads" to "Please go to this address and do everything you have done to terrorize other citizens of Hancock County. Help yourself to his stuff. Obviously he does not care. Camp out in woods and stay as long as you like."
White notes in the complaint that Jones' made the post in response to a news article about Swartzmiller's efforts to pass legislation concerning dangerous animals.
In another post on July 7, 2014, police say that after reading a news article about Hancock County Circuit Judge Martin Gaughan's involvement with juveniles addicted to heroin, Jones wrote urging heroin users to vandalize the home of Hancock County Circuit Judge Martin Gaughan.
Gaughan "feels sympathetic to heroin users. So please, all heroin user!! Go to the judges home and take what you want, trash the place, terrorize HIS family. He is okay with it," the post read, according to police.
After a hearing held July 29, special Magistrate David McLaughlin, of Marshall County, found probable cause to send the case to a grand jury. Hancock magistrates all recused themselves and McLaughlin was appointed.
Jones is a well-known political activist in Hancock County, according to his attorney. He doesn't have any criminal history and is a veteran retired from the U.S. Air Force, according to the petition Sbrolla wrote.
"The criminal charges obviously are aimed at causing a chilling effect on speech protected by the First Amendment," he wrote to justices. Sbrolla also points out that the charges stem from posts made a year ago.
Jones was originally charged in June with making terroristic threats over a post he allegedly made this year. Prosecutors voluntarily dismissed that charge before filing the new ones, but did so without prejudice, meaning Jones could still be indicted on the terroristic threats charge.
In the criminal complaint filed over that charge, White wrote that Jones "made threats to hunt down and put a bullet in the head of" several law enforcement officers in the area. White wrote that he viewed Jones' Facebook page by using the account of a fellow officer.
After viewing the post, White went to Jones' home, the complaint states. Jones immediately became agitated, according to White, and originally said he didn't remember posting the comment, "but could have." After White read the post to Jones, the man admitted he did and said, "he was sick of the corruption," according to the complaint.
White says Jones became agitated and eventually was placed under arrest.
Jones' attorney writes that post was also surrounded by political speech and was part of his clients' complaints about the handling of allegations that alcohol was to blame for a Wellsburg police officer's one-vehicle accident. The post even contained a photo of the accident scene, Sbrolla wrote.
It's clear that all of Jones' posts are complaints about local government corruption, wrote Jamie Crofts, an attorney for the state's chapter of the ACLU. Crofts filed a friend of the court brief Monday on behalf of Jones.
"First Amendment jurisprudence requires careful considerations of the actual circumstances surrounding the speech," Crofts said in a news release from the ACLU.
While Jones' statements may have been in ill taste, the First Amendment allows it, the release states.
"There was no danger of Mr. Jones's posts inciting illegal activity, and the state has made no arguments that any illegal activity occurred as a result of the posts," Crofts said. "Uninhibited speech on matters of public concern must be encouraged in a free society. And, speech on matters of public concern is entitled to the highest constitutional protections. We cannot criminally prosecute people because what they say may be upsetting."
Harrison Prosecuting Attorney James Davis was recently allowed to be taken off the case. The West Virginia Prosecuting Attorney's Institute appointed Marshall County Prosecuting Attorney Rhonda Wade. She couldn't immediately be reached for comment Tuesday.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.