Tempe's investigation of Facebook comment it labeled a threat raises First Amendment concerns

An investigation into an anonymous Facebook comment that led to a Tempe City Council meeting being shut down also led to the unmasking of a longtime online critic of the city’s government.

But some legal experts say the way that all happened violated people’s First Amendment rights.

Taylor Seely of The Arizona Republic has been following this and joined The Show to talk more about it.

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Tucson woman sues Tempe over police response to 'Game of Thrones' GIF

Ignacio Ventura

A Tucson woman is suing the city of Tempe over its reaction to a social media post that led to the evacuation of City Hall and her arrest. The federal that alleges constitutional rights violations.

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Full conversation

TAYLOR SEELY: Good morning.

MARK BRODIE: So let's talk first about this Katie Marie post, which referenced a "Game of Thrones," very popular TV show, which shut down a City Council meeting. What happened?

TAYLOR SEELY: Yeah, so this was in August of last year. The City Council was expected to have this really contentious meeting. And just before that meeting was about to begin, a councilman gets a comment on his profile page from a username named Katie Marie. And the comment had a "Game of Thrones" GIF. So it showed a silhouetted woman, and if people are familiar with the show, they would know it was Queen Cersei overlooking a town that was engulfed in a green smoke explosion.

And the caption read, "Konner Culver watching tonight's meeting." And now Connor Colver isn't obviously particularly well known probably across the state, but he actually is fairly well known in the city of Tempe because he's been a real thorn in the side of City Hall for some time. He had been a vehement critic of the mayor and the city manager and always had some of the best gossip and insider details.

But the city perceived that comment to be a potential threat, a potential bomb threat. So they decided to shut down the meeting, launched an extensive investigation into the Katie Marie account and eventually the Konner Culver account that led to his unmasking.

MARK BRODIE: Yeah, worth noting that both Katie Marie and Konner Culver, not the real names of the people who are posting. So this investigation, in part, was who are these people?

TAYLOR SEELY: Correct, but one thing I want to clarify a little bit about that is that Katie Marie, her name is Kathleen Marie Tierney. So the city has a couple times referred to her as using a fake name or a pseudonym. It wasn't so much a fake name as much as it was a shortened name. Kathleen goes by Katie. Marie is her middle name.

So there was definitely suspicion on the part of the city because after the meeting, the next day when they go to investigate, OK, let's go look at this Katie Marie profile, the profile account was deleted, and they thought that was very suspicious. But yes, Katie Marie actually Kathleen Tierney; Konner Culver, certainly not his real name.

MARK BRODIE: OK, so what is it that investigators did to try to get to the bottom of who Katie Marie was and ultimately who Konner Culver is that has some First Amendment folks concerned?

TAYLOR SEELY: Well, the thing that we have to remember is that the comment that was left, "Konner Culver watching tonight's meeting," and a Game of Thrones GIF isn't inherently, obviously, a threat, right?

When we talk about a true threat, the sort of legal term, this has to be something explicit, directed where there's really no uncertainty that absolutely, yes, that was a threat. So that's sort of the first thing here. You know, can you put yourself in the city of Tempe's shoes? Can you look at, "Hey, we just want to act with the utmost caution here"? Sure. But at the end of the day, that speech itself is protected expression.

So when you go to investigate and then you find no real threat, which is what law enforcement found that night. They abruptly shut down the meeting, they swept the premises for any threats, they did not find any threat. They eventually executed search warrants and they also in those search warrants found no behind-the-scenes plan or coordination amongst anyone to even, not to threaten anyone and not even to attempt to scare someone into thinking it was a threat, which is also criminal activity. So that was not found here.

And then when it comes to Konner Culver and his unmasking, they executed search warrants into his Facebook profiles, into his many email accounts to identify who he was. They sent law enforcement to his homes in both Arizona and Oregon to identify him and to ask him questions. OK, that's one thing.

Another thing is when you then go and put that man's name in a publicly released police report after the fact, after you know he actually did not have anything to do with this, he was not connected. And for listeners who may not realize, because I think this does come as a surprise to people sometimes, but the First Amendment protects anonymous speech. It is actually a core American tradition. The founders of this country engaged in pseudonyms and anonymity to express politically unfavorable or really bold ideas.

MARK BRODIE: What is the city's justification for how it handled this?

TAYLOR SEELY: The city's justification for the extensive search warrants is that they did believe that this was a threat and that they were acting in the name of public safety, that they needed to, you know, search down every last lead to ensure that this was not actually going to endanger anyone and to hold people to account.

After they arrested Tierney, they accused her in a press release of interfering with democracy. So you can see how seriously they took this.

With regard to Konner Culver, I didn't get a good answer from them, I didn't get any answer from them on why they opted to put his name in the publicly released police report other than we comply with public records law.

MARK BRODIE: Oh, that's really interesting. All right. That is Taylor Seely with The Arizona Republic. Taylor, thanks as always. I appreciate it.

TAYLOR SEELY: Thanks so much.

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