Background
Andrew Hess attended an election recount in Oakland County, Michigan, in December two thousand twenty-three. After expressing concerns about ballot tampering to the county director of elections, Joseph Rozell, Hess exited the recount room and told a third party in the lobby to hang Joe for treason. He was later charged with a felony under Michigan’s terrorist-threat statute. Although the charge was initially dismissed after a state appellate court found the statute facially unconstitutional, the Michigan Supreme Court reversed that decision, reviving the possibility of prosecution. Hess sought a preliminary injunction in federal court to stop the threatened prosecution, which the district court denied.
The court’s reasoning
The court agreed that Hess’s statement was likely protected speech and not a true threat under the First Amendment. However, the court held that Hess failed to show irreparable harm necessary for a preliminary injunction. Because the threatened prosecution targeted his past speech rather than future conduct, and because state court procedures allow for expeditious litigation of First Amendment defenses, the federal court should not intervene at this stage.
We agree with Hess that he is likely to succeed on the merits of his claim that his hang Joe for treason statement constituted protected speech, not a true threat.
Hess v. Oakland Cnty., Mich., No. 25-1784 (6th Cir. May 5, 2026)
What it means going forward
Federal courts will likely decline to issue preliminary injunctions against state prosecutions for past speech when adequate state court remedies exist to address constitutional defenses.
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