Exactly a year ago this week, I wrote in this space about how Nevada Attorney General Aaron Ford had invoked a 109-year-old state law to criminally charge Steve Feeder of Las Vegas with publishing strong language on social media about the AG’s Democratic ally, Nevada Governor Steve Sisolak. Feeder had criticized Sisolak’s early business-shutting handling of the pandemic in the spring of 2020. The defendant used language like, “The TYRANT has declared WAR on the people and like Hong Kong protestors we need to arm ourselves and form a militia and fight back.”
Originally, there were three charges brought by Ford’s office against Feeder. But before I wrote about the case, Las Vegas Justice Court Judge Karen Bennett-Haron had dismissed two of them–interfering with a public official and provoking commission of a breach of the peace. That left only the publishing charge, a gross misdemeanor punishable by up to a year in county jail and a $2,000 fine. In June 2021 Ford’s office filed a new complaint against Feeder with just the one remaining charge.
I thought it was a weak case, due to First Amendment protection of freedom of speech and something called the Overbreadth Doctrine. That’s a line of U.S. Supreme Court cases holding that someone being prosecuted for speech can win if the specific law criminalizes protected speech as well as unprotected speech (i.e., inciting violence), even if the defendant only uttered unprotected speech. The now-110-year-old law, Nevada Revised Statutes 203.040, criminalized speech that, among other things, might “advocate disrespect for the law or for any court or courts of justice.” This is obviously protected speech, judging from harsh comments we read every day made by, say, pro choice advocates and former President Donald J. Trump for different reasons about the U.S. Supreme Court.
Well, as it turned out, the Feeder matter was a pretty weak case. At a brief hearing on November 2, District Judge Christy Craig dismissed the remaining incendiary-publishing charge without a trial. So Feeder, 61, stands completely exonerated.
The dismissal came less than a week after Feeder’s lawyer, Craig Mueller, filed a motion to dismiss. He argued just one ground: that the continuing prosecution constituted double jeopardy–barred by both the U.S. and Nevada constitutions–because its essential elements duplicated one of the two earlier charges for which Feeder had been cleared.
Mueller’s motion/brief was all of six pages long and cited just three court precedents. There was no written response or oral objection from Deputy Attorney General Michael C. Kovac, who was prosecuting the case. He “had no opposition” to the motion, states the official court record, which is displayed nearby.
That makes me think the Attorney General’s office simply gave up the ghost on this one. Perhaps Ford and other Democrats didn’t want the case, with appeals, to drag on into Sisolak’s reelection bid next year, when Feeder might become a tangible symbol of alleged government overreach. Criticism of Sisolak’s handling of the pandemic already has become an article of faith among the many Republicans vying for their party’s nomination. Ford will be up for reelection, too.
To me, Feeder’s real offense might have been this: He put his comments on the governor’s own public Facebook page, where a lot of people would view it, rather than on his own Facebook page or protest outside the governor’s office with a picket sign that almost no one would see. Who goes to Carson City, anyway?
Still, after The Nevada Independent wrote the first story about Feeder’s case, Ford’s office linked to the article in a tweet on its official Twitter account and added, “A friendly reminder, inciting imminent lawless action, true threats, and definitely death threats, are NOT protected speech. On social media or elsewhere, against fellow Nevadans or public officials. Our Office won’t tolerate it. In fact, it may lead to prosecution.”
But not in this instance to conviction. Feeder this weekend has been alerting media folks who initially covered the case about the favorable-to-him outcome, which is easily confirmed in online court records. This outreach included an email to the New To Las Vegas world headquarters. In a later back-and-forth email exchange with me, Feeder said he might sue Nevada officials for federal civil rights violations.
Another weak case, in my view. But it will be interesting to see if the AG’s office posts a follow-up tweet–or comments below–explaining failure in what to start with was an iffy case.