In Vermont, Free Speech for Some, Harassment for Others

On the night of December 11, 2020 spray-painted tombstones with the words “here lies progress” appeared outside the homes of two Burlington city councilors, Chip Mason and Joan Shannon. With this political graffiti, residents seemed to be expressing anger that Shannon and Mason continuously resisted police reform. Three days later, activists used Councilor Joan Shannon’s publicly available phone number to disrupt a council meeting where Shannon was speaking in support of increasing police funding and minimizing police oversight, by calling the councilor numerous times over the course of ten minutes. 

In the following months Shannon used countless hours of government resources, including the Burlington Police Department, the Community Justice Center, and the Chittenden County State Attorney’s office, to punish and silence these activists for “disturbance of the peace/disorderly conduct by telephone or other electronic communication.” This crime comes with a penalty of no more than 3 months in jail, a fine of no more than $250, or both. 

During a time when there is increased media attention moving away from police oversight and police harassment and towards the feelings of politicians and the decorum of politics, the following cases suggest that when it comes to harassment of public officials, state resources tend to be used in racial and politically unequal ways, to help whiter, wealthier, politically conservative residents feel safer, especially when the perceived threat comes from activists on the left.

Recent Examples of Harassment

Vermonters harassing public officials through phone and social media and facing little legal or criminal consequences would not be something new. A 2017 Wired article found that Vermont had the highest rate per capita of negative, trolling comments of any state. Yet the way Vermont law enforcement and state’s attorneys choose to prosecute this behavior is tinged with political, and even racial, prejudice. 

For two years, Kiah Morris, a state representative and Black woman, was the target of sustained harassment from Bennington white supremacist Max Misch. Even after this, Vermont Attorney General TJ Donovan claimed in early 2019 that Misch’s behaviors were protected speech under the First Amendment. For two more years after Morris had made her initial complaint to the Bennington Police Department, the Bennington State’s Attorney’s Office and Donovan refused to move forward with any charges against Misch. It took a report from the Vermont Human Rights Commission and a separate, unrelated hate crime charge for Misch to face criminal consequences for his harassment. 

In November of 2019 Christopher Hayden, a Burlington resident, sent numerous racist and anti-semitic-laden emails to Burlington Councilors Ali Dieng, Burlington Mayor Weinberger, and Burlington Police Chief Brandon del Pozo. He was charged with a hate crime by the Chittenden County Attorney’s Office. In response, Chittenden Superior Court Judge Kevin Griffin ruled that harassing a public official is protected speech. While the judge ruled that some of these emails crossed the line into harassment, his ruling determined that the Chittenden County State’s Attorney’s Office had bungled the case by claiming that the emails themselves, regardless of content, were repetitive and harassing. Griffin disagreed, ruling that “a person’s sending emails to an official’s public, official email account with the intent to harass the official is core political speech.”

A Reuters investigation into increased nationwide harassment and threats of election workers in the lead up to November 2020 presidential election included unfavorable coverage of the Vermont State Police. The State Police claimed that a Vermont man made harassing phone calls that were “essentially untraceable” and that there were no grounds for charges because the harasser never offered a specific plan of threatening harm.

This man at one point called the Secretary of State’s office, referring to two journalists by name, saying, “You guys are a bunch of fucking clowns, and all you dirty cocksuckers are about to get fucking popped.” Vermont State Police Public Information Officer Adam Silverman, claimed that the message was not an “unambiguous reference to gun violence” and that “popped” could refer to being “shot” or to being “arrested.” These harassing messages, according to Vermont officials, were legally protected speech.

Lastly, there was the infamous situation in which two acting Burlington Police Chiefs were accused of similar behavior: creating fake social media accounts to troll and harass critics of Burlington’s violent police department (including this reporter). 

Instead of calling for restorative justice or a criminal investigation, Councilor Shannon said at the time, “This is serious, but any employee deserves a second chance.” According to MyNBC5, “State’s Attorney Sarah George said Chief Del Pozo’s actions were concerning but [she] did not believe he should resign over this.” George not only gave him her full support, but publicly commiserated with his dilemma of occupying a position of power while being criticized on the internet

In an email exchange with State’s Attorney George in September of 2021, George intimated that because her office doesn’t independently pursue charges, any charges would require a police investigation into police behavior. Further, because she did not see an affidavit on the conduct of del Pozo, she would not make any statements about potential criminal charges. 

The State’s Attorneys office can only pursue cases in which charges are brought against people by police departments. If that police department has a history of racism, classism, or are in the middle of calls for reforms to their power and position in the community, it is the job of the State Attorney to decide which police cases are free of those ingrained biases. George has gone on the record to state she fights systemic racism by “declining cases they receive from law enforcement and/or limiting the number of cases we bring to the Courthouse.”

When it came to the five young adults — primarily BIPOC and LGBTQA+ community members — who prank called Councilor Shannon during a 10-minute period one December evening in 2020, Shannon and George in particular took a different tone than they had with Chiefs del Pozo and Wright. Shannon did not respond to multiple requests for comment with regard to the original incident. 

The Prank Call 

Documents provided from a record request shed light on the police department process that took place over the course of several months. Around 10 a.m. the day after the prank calls, Shannon filed a report with the Burlington Police Department. That same day, the police sent a subpoena to George’s office for phone records on Shannon’s phone, and two officers canvassed Shannon’s neighborhood.

The affidavit from this report, written by Detective Thomas Chenette, says that 223 communications were received the night of December 14. One person reportedly called 136 times, another 61 times, and the other three only 7, 6, and 3 times. These numbers were disputed by one of the prank callers, claiming they only got through ‘‘maybe 25 times maybe less” and that the numbers presented were inflated to imply guilt. 

All five received the same punishment. Chenette wrote that evidence showed “a clear coordinated effort to bombard Councilwoman Shannon,” but later admitted that three of the five “were in communication on the date of the offense” while the other two were “likely inspired by other sources.” Level of coordination, or number of calls, had no bearing on the charges brought by George’s office. 

In the proceeding week the police contacted Blodgett Ovens for security footage and had a subpoena for AT&T phone records signed by a Chittenden County Judge. By December 28, Burlington police received the phone records and had sorted and identified the callers. In January 2021, subpoenas for the suspects’ Verizon, Comcast, and AT&T accounts were completed, sent, and signed again by Judge Maley. By the end of March, citations were issued, and Burlington police went out to personally hand-deliver them for the five prank callers.

Four of the five young adults went through the restorative justice process with Shannon, one at a time. The fifth one refused, believing they were innocent, and with the help of public defender Sandra Lee, prepared for a hearing in mid-August. The Friday before they were headed to court, the case was dismissed.

Restorative Justice in Practice

The four callers who agreed to a restorative justice process did so through the Burlington Community Justice Center. These four found the process itself to be coercive; although they were not charged with a crime and maintained their innocence throughout, they felt that the form letters they received from the Chittenden State’s Attorney’s office were intimidating. The letter they received listed all of the negative economic consequences they would incur if found guilty. They did not believe that George’s office would go easy on them, so to engage in a restorative justice process they were required to admit their actions caused harm to others, even if they didn’t actually believe it.  

One of the activists’ biggest complaints was how the restorative justice process was used to strong arm them into engaging in a punitive process even while they maintained their innocence. None of them believe they committed a crime, especially not one that would result in them going before a judge, risking a felony conviction. They never had an opportunity to tell Shannon how they believe her actions harmed them and the broader community. “Shannon has used restorative justice to lock young people who disagree with her into conversations with the threat of legal action,” one said.

Not only did they find the restorative justice process coercive, they found it to be racially unbalanced. The four who went through the process found that their experiences were different; negatively so for those who identified as BIPOC or LGBTQIA+. They believe they were “put through a much lengthier and arduous process” than their white peers. 

We reached out to Rachel Jolly, the Director of the Burlington Community Justice Center, to ask about restorative justice and how they minimize potential coercive elements in the process. Although Jolly had spoken to VTDigger just days before the request, Jolly said she was “unavailable at this time” but did not offer any follow-up dates. A follow up email several months later received no response.

In an email interview with The Rake, George defended her office’s actions against the prank callers.

George believed that these callers needed accountability and that “two other options were offered and neither would have required [the person] to go to Court. Even if [the person] had declined diversion, there are many other options while a case is pending that would have been offered to [the person], none of which would have led to a criminal conviction.” 

When asked if prank calling, regardless of intent or outcome, should ever result in a criminal conviction, and how exactly the entire community (not just politicians) benefits from these charges, especially for a first-time prank calling offense, George did not answer.

When asked if George had charged others solely with disorderly conduct by electronic communication charges, she stated that said data wasn’t available in her reporting system, which is controlled by the state. According to Lee, the public defender, the judge was not convinced that the initial charges met the requirements of probable cause for disturbing the peace, that the defendant had engaged in behavior meant to “terrify, intimidate, threaten, harass, or annoy.” The Rake does not know whether the sole charge played a role in this decision.

Both the public defender and George’s office agreed that the judge questioned whether there was truly probable cause and asked for more research into the case law. George believed that although the case law was not overwhelmingly in their favor, “we probably could have gone forward.” George did not explain why they would have chosen to move forward with such a low-stakes case and no overwhelming avenue to win. Because the case was dismissed without prejudice and sealed, no judicial documents could corroborate George’s side of the story.

Without data from George’s office or testimony from others with extensive knowledge of Chittenden County and Vermont case law, we have no evidence that anyone has been charged by George’s office or any other state’s attorney with a similar single count of harassment toward a politician, nor could we establish whether this case could have been successfully prosecuted in the name of “public safety.” 

Lessons Learned

The Rake interviewed the five young adults cited by the Burlington Police Department, who consider themselves a diverse group including BIPOC and LGBTQIA+ individuals. They have lived in Burlington anywhere from 5 to 20 years, and have been involved with many different types of mutual aid and activism in Burlington. 

These young adults saw their disruptive tactic, not dissimilar from protesting at a council meeting, as an act of protest “towards the racially insensitive and white supremacist rhetoric Joan Shannon continues to spread.” The five activists dispute Shannon’s interpretation of events.

In the initial Seven Days piece, Shannon claimed that she received a “very offensive text” but offered zero evidence to support this. When The Rake made a record request to retrieve the text message, city attorneys told us that the text message had been deleted. We reached out to Shannon to ask about why she deleted a text that would have directly related to the police investigation, but received no response. The activists do not believe any texts or messages they sent were offensive, and were never shown the alleged “very offensive” text in question.

They also called into question Shannon’s use of police resources, especially in light of Councilor Shannon’s claims that the Burlington Police force was under financial as well as staffing duress. While Shannon claims the activists were attempting to silence her — a councilor with close ties to Interim Chief Murad and a decade-long history on city council — the group believe that it was in fact Shannon who was “using the police force to silence her constituents…especially over a situation that could be resolved with the do not disturb button.”

“This experience has only proven to us that our thoughts and fears of councilor Shannon and BPD were true,” said one. “Shannon for months has been suggesting that crime in Burlington is sky-rocketing and the police force is underfunded and understaffed, however she is still able to personally ask BPD to investigate pranks calls, and they will do it… Other public officials in Vermont who identify as Queer and/or BIPOC receive death threats and receive no police involvement when these incidents happen.”

This one case is instructive into how restorative justice works in practice. In theory it is meant to make communities whole through collaborative means. By getting everyone involved in a situation to sit down and talk, all sides are supposed to hear from each other and learn how they can be more supportive community members. Yet this example shows us that instead of reforming the justice system, it maintains the status quo. Instead of shifting power to marginalized community members who are most often the victims of police and state violence, those in power continue to be prioritized, with their own comfort being placed above what many others consider core political speech. While restorative justice does keep some people out of incarceration, in its present state it is a coercive model that ends up silencing community members with far less power.

Sarah George’s email signature has a Martin Luther King Jr. quote: “Injustice anywhere is a threat to Justice everywhere.” To the five youth who believe a city councilor conspired with police and a State’s Attorney to silence them, threatening them with charges that appear to be exceptional, it may be worth asking: injustice for whom?

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