Federal lawsuit challenges Vermont statute that impermissibly restricts online speech

Contact: Stephanie Gomory, [email protected], 802-223-6304 x111

MONTPELIER, Vt. – Brattleboro resident and Black Lives Matter supporter Isabel Vinson filed a federal lawsuit today challenging a Vermont law that prohibits “disturbing peace by use of telephone or other electronic communications.” Vinson was criminally cited by the Brattleboro Police Department in June 2020 for her online criticism of a local business owner’s derogatory Facebook posts about the Black Lives Matter movement.

The lawsuit asserts that the law at issue, 13 V.S.A. § 1027, unconstitutionally restricts online speech. Vinson is asking the U.S. District Court for the District of Vermont to declare that the statute violates the First and Fourteenth Amendments of the U.S. Constitution and to issue an injunction prohibiting its enforcement going forward.

ACLU of Vermont General Counsel Jay Diaz: “This case is yet another example of law enforcement overreach in our communities. Vermont police should have better things to do than targeting and criminally citing Vermonters for non-threatening Facebook posts. It also demonstrates why First Amendment freedoms are so important, and why restrictions on free speech are often problematic.”    

Isabel Vinson, a white woman, is a supporter of the Black Lives Matter movement, which calls attention to ongoing, systemic injustices faced by Black communities and individuals nationwide.

In June 2020, days after the police murder of George Floyd, a Brattleboro business owner posted on his personal Facebook page, “How about all lives matter…Put your race card away and grow up.” In response, Plaintiff Vinson posted on her own Facebook page, “Disgusting…no matter how many people try and tell him it’s wrong he doesn’t seem to care.”  In the comments on her post, Vinson also recommended that others leave a review on the individual’s business page.

On July 7, 2020, Brattleboro police cited Vinson under 13 V.S.A. § 1027 based on her Facebook activity. The ACLU filed a public records request about the incident, and shortly thereafter, the Brattleboro police offered Vinson diversion in exchange for dropping the criminal charges. Two days after Vinson rejected that offer, the charges were dropped without explanation.

ACLU of Vermont Executive Director James Lyall: “This case shows once again why police should not be left to police themselves, and why we can’t leave it up to government to decide what speech is acceptable. In these times more than ever, it’s important to recognize that a healthier democracy requires a free exchange of ideas.”

The lawsuit argues that 13 V.S.A. § 1027 is “at once vague and exceedingly broad in scope” and is therefore unconstitutional. The law provides:

A person who, with intent to terrify, intimidate, threaten, harass, or annoy makes contact by means of a telephonic or other electronic communication with another and makes any request, suggestion, or proposal that is obscene, lewd, lascivious, or indecent; threatens to inflict injury or physical harm to the person or property of any person; or disturbs, or attempts to disturb, by repeated telephone calls or other electronic communications, whether or not conversation ensues, the peace, quiet, or right of privacy of any person at the place where the communication or communications are received shall be fined not more than $250.00 or be imprisoned not more than three months, or both.

Another Vermont statute, 13 V.S.A. § 1702, is far narrower and applies to situations involving actual, direct threats that put others in reasonable fear of death or serious bodily injury. It is clear that Vinson’s online posts never rose to that level.

Isabel Vinson is represented by the ACLU of Vermont and Justin Barnard and Haley Peterson of Dinse, P.C.

A copy of the complaint is available here.