The Hutaree militia group may have wanted to wage war against the U.S. government. But federal prosecutors failed to prove that a specific plot existed, so their case against seven of its members was correctly thrown out this week.
Nine members of the Lenawee County group were arrested two years ago and charged with plotting to overthrow the U.S. government and planning to use weapons of mass destruction. The federal government had infiltrated the group and recorded conversations in which militia members talked about building explosive devices, going to war with the government, and killing police officers. In one conversations, a Hutaree leader said of local police: "We're going to pop every one of them."
But from the beginning, it was unclear whether the rants were anything more than the ravings of an anti-government fringe group. In 2010, U.S. District Court Judge Victoria Roberts said that recordings played during bond hearings for the nine militia members displayed "offensive and hate-filled speech," but not a specific conspiracy.
One of the accused members eventually pleaded guilty to a gun charge. Another was declared incompetent to stand trial. This week, Judge Roberts acquitted the other seven of conspiracy charges, although two pleaded guilty to possession illegally altered weapons.
"The back-and-forth banter, like the other anti-government speech and statements evincing a desire -- even a goal -- to kill police, is simply insufficient to sustain the seditious conspiracy charge," Judge Roberts wrote, echoing her remarks from two years ago. "It requires an agreement and a plan of action, not mere advocacy of hateful speech."
Seditious conspiracy is intended to be difficult to prove, because it deals directly with the line between protected and unprotected speech. One of the prosecutors in the case admitted during the trial that there was no proof of a "specific plan" to attack the government.
An acquitted militia member said the lesson he took from his arrest and trial was: "Watch what you say. Even the most innocent of statements can be bent. If they want to get you, they get you."
But "they" didn't get the Hutaree. Instead, the Constitution's free-speech guarantee and the federal judicial system -- part of the government Hutaree members claim to abhor -- protected their right to engage in "offensive and hate-filled speech."
That likely rankles federal prosecutors who would like to stamp out threats before they pose a danger. But that course is better suited to totalitarian regimes.
The government can't target "innocent" citizens with impunity. The fact that militia members, however contemptible, are free testifies to that fact.
The big talk by Hutaree members wasn't innocent, but it was protected. That's a victory for all Americans.