'Breakdown In Bennington': How Vermont's AG Investigated A Death Threat, Racist Speech
When does speech become a crime? It’s a line that’s tested over and over, and answers are usually unclear.
Last year, the limit of free speech was tested in Vermont when Attorney General TJ Donovan looked into racist speech made against former state representative Kiah Morris.
Donovan decided not to file criminal charges against a white nationalist who went after Morris online. And his decision drew harsh criticism from members of the racial justice community in Vermont.
Vermont Public Radio and VTDigger have been looking into what led to Donovan’s decision.
Read VTDigger’s feature story here.
In the fourth of five stories we’re collecting under the name Breakdown In Bennington, VPR’s Peter Hirschfeld reports on how Donovan decided no crimes were committed. We recommend listening to the audio story above, but we’ve also provided a transcript below.
Disclaimer: Transcripts are generated using a combination of speech recognition software and human transcribers. They may contain errors, so please check the corresponding audio before quoting in print.
Peter Hirschfeld: It was only a couple of days after Kiah Morris announced her resignation from the Vermont House of Representatives that the attorney general said he was taking over the investigation.
Morris left office after becoming the target of a white nationalist who lives in her district, named Max Misch. And Attorney General TJ Donovan said he wasn’t convinced that Bennington police had done an adequate job investigating the case.
Here’s Donovan in 2018, a few hours after he announced his probe.
TJ Donovan: For whatever reason, there was a breakdown in Bennington. I think that’s clear. I think that’s what we can agree with right now. As to the reasons why, let us conduct our investigation. I think there are larger issues here at play.
Peter Hirschfeld: The thing is, Donovan ultimately acquitted the Bennington Police Department of any wrongdoing. And he also concluded the racist speech Max Misch had directed at Kiah Morris did not violate any laws.
Months later, VPR and VTDigger asked Donovan to explain.
The attorney general invited several of his top appointees to join us, including the chief of his civil rights division, his chief of staff, his communications manager, and the deputy attorney general who led the investigation into Morris’ case.
TJ Donovan: Guys, this is like a dorm room. Everybody’s got like their food and coffee cups. You guys want anything?
VPR’ Peter Hirschfeld and VTDigger’s Alan Keays: Nope.
TJ Donovan: You sure? You know everybody?
VPR and VTDigger: We do.
Peter Hirschfeld: Donovan says the real purpose of his taking over the case was to conduct a forensics examination of a laptop computer owned by Kiah Morris’ husband, James Lawton.
TJ Donovan: Well I think what’s important is to frame the investigation: We originally got involved, Alan, to address the alleged death threats against Kiah Morris.
Peter Hirschfeld: You see, during the summer of 2018, a username mysteriously popped up on Lawton’s computer, a used computer he’d purchased earlier that summer. The username was “dead dead.” And when Kiah Morris told Capitol Police at the Statehouse about it, they urged her to go immediately to Bennington Police.
Donovan says Bennington Police just didn’t have the forensic tools to see why that screen name popped up, or who it may have come from, or whether it was connected to the other racial harassment that Kiah Morris was dealing with at the time.
TJ Donovan: And so we got involved for the sole purpose of investigating the alleged death threat, which was that online death threat of “dead dead.” We worked with forensic examiners of the Vermont State Police, and we were able to determine that in fact there was no death threat.
Peter Hirschfeld: No death threat, because the screen name actually belonged to a 10-year-old boy whose family’s network was still connected to the laptop that Lawton had purchased from them. The kid used the name “dead dead” as a moniker for computer games he was playing on the internet.
Last year, VPR and VTDigger obtained the full investigation file from the AG’s office. And it turns out the forensic analysis of the computer was pretty much all that Donovan’s investigation consisted of. Which was a surprise to Kiah Morris, who thought the attorney general and state police would initiate a more thorough investigation of the racist speech from Max Misch.
Kiah Morris: It was unfortunate that the kind of word went out, and I think even our first impressions were that they were going to really try to take this on and figure out what was going on with this case. But they weren’t going to launch their own investigation, that wasn’t something that I think – it took us some time to understand the difference of what that means.
Peter Hirschfeld: Donovan says that as part of his investigation, his office did review other elements of Kiah Morris’ case, including the allegations of harassment by Max Misch.
TJ Donovan: I thought it was important to look at it, and it was what we do in a typical case: Collect the police paperwork, collect the flop file, and review it. And make a determination whether probable cause existed for any sort of crime.
Peter Hirschfeld: He said that “investigation” consisted solely of reviewing police reports that were already on file at the Bennington Police Department.
But Donovan says it provided him with the information needed to answer the question at the heart of this story. Does Max Misch’s behavior fall within the bounds of protected speech? Or did his tweets and his taunts cross a line into something else?
According to Donovan, what Misch did was entirely within the bounds of what’s allowed by the First Amendment. VTDigger reporter Alan Keays wanted to know how he arrived at that conclusion.
Alan Keays: Did you folks ever interview Max Misch?
TJ Donovan: I don’t think we did. But in evaluating the speech, which were tweets on Twitter, that’s the speech. So we had the speech. That was evaluated.
Alan Keays: But you wouldn’t go back and ask him what his intentions might be beyond the speech?
Peter Hirschfeld: Donovan’s aides later confirmed they did not interview Misch as part of their investigation. And they said there was no point in talking to him.
Julio Thompson is the head of the civil rights division at the attorney general’s office. And he explained to Alan and me that in order to charge a person under Vermont’s criminal threatening laws, you need two things.
The first thing is an actual threat. The second thing is an intent to make someone feel threatened.
And Thompson says that because Misch’s tweets didn’t constitute a threat, then it didn’t matter what was inside his head when he wrote them. Not from a legal perspective, anyway.
Julio Thompson: And so if you aren’t able to show that something communicates a threat, the speaker’s intention of a threat, you know, it wouldn’t be relevant, because you wouldn’t be able make the threshold showing. Calling someone a name or making fun of their race or disparaging it isn’t threatening behavior.
Peter Hirschfeld: Donovan says he understands that legal analysis isn’t going to provide much comfort to the target of Misch’s comments. And says he understands why Kiah Morris would feel threatened by the things Misch was saying.
TJ Donovan: To say that something is protected does not mean that it isn’t hurtful, because it clearly is hurtful. And words can hurt, and words can inflict harm, and we need to acknowledge that. And in this case, the racist tweets – and they were racist – clearly inflicted harm, not just on Kiah Morris, but I would suggest the entire community of people of color in this state.
Peter Hirschfeld: Many racial justice leaders were looking for more than acknowledgment of harm though. They wanted charges. And Donovan’s explanation notwithstanding, they’re still convinced the attorney general should have filed them.
This is the fourth of five stories in VPR and VTDigger’s weeklong series looking back at Kiah Morris’ resignation from the Vermont House of Representatives. Find all the stories on our Breakdown In Bennington page.