Are KY man’s Halloween decorations protected by First Amendment? What experts say
A Powell County man was arrested this week after displaying Halloween decorations that depicted the “bodies” of five public officials.
He was charged Oct. 4 with terroristic threatening and intimidating a witness in the legal process.
But First Amendment experts in Kentucky say the display may be a protected form of political speech.
Stephan Marcum, 58, was arrested after police say he displayed five bodies in trash bags on his front lawn. One of the bags, labeled “District Judge,” was arranged so the body in the bag appeared to be hanging by its neck. The other bags were labeled “Mayor” “SIS,” “C.A.” and “Zoning Mgr,” according to the citation.
The decorations did not include the officials’ names, but court records show Marcum has been in a dispute with the city of Stanton over a building near his home.
The city said in a Facebook post Tuesday that Marcum was granted a conditional use permit to use the building as an art studio and residence if certain conditions were met, including establishing water, sewer and electrical services. The permit was revoked and Marcum was cited for violating a city ordinance, however, after city officials said he failed to meet those conditions.
But Russell Weaver, a law professor at the University of Louisville, said Marcum’s display could be protected political speech conveyed in a non-conventional way.
“We allow a lot of types of speech,” Weaver said. “We don’t want the government telling us to say things in a certain way.”
The courts become involved, Weaver said, when such speech crosses the line into a “true threat.”
To be classified as a “true threat,” the speaker must make a serious expression to commit violence and “recklessly” disregard whether a person would interpret it as such.
“Unless there is something more, I would feel comfortable defending that this is free speech, and he’s not intending to make a true threat,” Weaver said.
The true threat doctrine was established in a 2023 Supreme Court ruling, Counterman v. Colorado.
It’s a tough threshold to prove, said Mike Abate, a Louisville lawyer who specializes in the First Amendment.
“When you are talking about a Halloween display of unidentified public officials, nothing was sent to them, and it’s in his own front yard — it’s a sign of displeasure rather than intent to kill,” Abate said.
While it may not be in good taste, Abate said, that does not make the yard display a crime.
“Sure, it is unsettling if you are one of the people that are depicted, but to criminalize someone for what could fairly be described as disagreement of public officials’ conduct is very unsettling,” Abate said.
Kenneth Katkin, a law professor at Northern Kentucky University, said to prove that a true threat was likely, the government would have to show someone was influenced by the display to commit violence against the officials.
“Without any evidence that anyone did something to that effect, that fits into First Amendment political hyperbole,” Katkin said. “I dont see how anyone could say that he committed a crime or true threat just by putting something on his yard, especially at Halloween.”
Court records show a special judge has been assigned to the case. District Judge Gary Salyers, who represents the 39th Judicial District, will be replaced by Judge William Roberts, of the 21st Judicial District in Rowan County.
A hearing for Marcum’s charges has not been scheduled.
