ACLU sues attorney general investigator over warning to Monroe County man about “86” social media posts

A Monroe County man has filed a First Amendment lawsuit after an investigator for the Indiana Attorney General’s office came to his home and warned him that Facebook comments using the numeral “86” could get him indicted.

The lawsuit, filed May 7 in the U.S. District Court for the Southern District of Indiana, names Lee Lawmaster as plaintiff and Kurt Spivey, director of investigations for the Indiana Attorney General’s office, as the defendant. Lawmaster is represented by the ACLU of Indiana.

Spivey is asking for a jury trial.

According to the complaint, Lawmaster posted “86” followed by the names of elected officials on their official Facebook pages, including Attorney General Todd Rokita, Lt. Gov. Micah Beckwith and U.S. Sen. Jim Banks. The complaint says Lawmaster meant the slang term in the sense of “throw out,” “get rid of,” or remove from office, not as a violent threat. There does not appear to be a definitive etymology for the use of “86” as a slang term.

The filing says Lawmaster’s posts were partly a protest of the prosecution of former FBI Director James Comey over a social media post showing “86 47” spelled out with shells on a beach. The “47” in Comey’s post is interpreted as the 47th U.S. president, who is Donald Trump. The complaint says Lawmaster believed Comey’s post was protected speech and used “86” to express his own opposition to certain elected officials.

On May 1, according to the complaint, Spivey went to Lawmaster’s home and spoke with him at the front door. The encounter lasted a little more than two minutes and was recorded by a door camera, which captured both audio and video. A transcript of their exchange is included in the complaint.

The complaint quotes Spivey as telling Lawmaster that he was there to talk about Lawmaster’s “internet activity.” When Spivey asked whether Lawmaster remembered what he had posted, Lawmaster replied, “86 somebody.” Spivey then asked whether Lawmaster understood the term in light of the Comey case. Lawmaster replied: “Just means get rid of.”

Spivey acknowledged that Lawmaster had a right to free speech and to his own opinions, according to the quoted dialogue in the complaint. But Spivey then told him: “But you crossed the line … with a threat like that.” Spivey suggested that Lawmaster “tone down the political rhetoric a little bit,” and told him that when someone comes knocking on your door it means things have gone too far.

The key statement cited in the lawsuit comes later in the exchange. Spivey allegedly told Lawmaster: “Listen, if Comey was indicted, we could easily indict you over this today.” Spivey then said he could “check a box” saying they had talked, had “come to an agreement,” and that he could “let this one slide.”

The complaint says Spivey’s comments amounted to a threat from a state official that caused Lawmaster to stop posting not only “86” comments, but any comments on elected officials’ social media pages, because he feared retribution.

The lawsuit asks the court to declare that Spivey violated Lawmaster’s First Amendment rights and to block Spivey from taking action against Lawmaster over past or future “86” posts. The lawsuit also asks the court to block any action against Lawmaster for using any other wording that does not amount to “a true threat as defined by the U.S. Supreme Court.” Lawmaster is also asking for compensatory, nominal and punitive damages, plus attorney fees.

Under the rules of federal civil procedure, Spivey will have 21 days to respond, after being served in the lawsuit.