Free speech rights claim under 42 USC § 1983; Request for a preliminary injunction against prosecution under Michigan’s “terrorist threat” statute (MCL 750.543m(1)(a)); “True-threat” precedent; Preliminary injunction factors; Winter v National Res Def Council; Likelihood of success on the merits; “Irreparable harm”; Distinction between threatened enforcement against past speech as opposed to future speech

[This appeal was from the ED-MI.] The court affirmed the district court’s denial of plaintiff-Hess’s motion for a preliminary injunction against possible prosecution under Michigan’s “terrorist-threat” statute, concluding that while he could succeed on the merits of his free-speech claim, he was unable to establish irreparable harm. Hess raised allegations of “ballot box tampering” to an Oakland County election official and said “hang Joe for treason” to another individual in the courthouse lobby. He was charged under Michigan’s “terrorist-threat” statute, MCL 750.543m(1)(a), for making that statement. The charge against him was dismissed after the Michigan Court of Appeals held in another case that the statute was unconstitutional. Hess then filed this suit against defendants-Oakland County and various County officials for, among other claims, violating his First Amendment right to free speech. Michigan’s Supreme Court reversed the Court of Appeals as to the constitutionality of the statute, reviving “the possibility that Oakland County could prosecute Hess under the terrorist-threat statute after all.” To forestall this, he sought a preliminary injunction. The district court denied the injunction, ruling that Hess was unlikely to succeed on the merits. On appeal, the court agreed with Hess that he was likely to succeed on the merits on the basis “he did not express a true threat by saying ‘hang Joe for treason’ in a ‘normal conversational tone’ made outside” the election official’s “presence, in what Hess believed was a private remark” to another member of the public. But the court held that he was unable to establish the irreparable harm requirement for an injunction because even though “the threat of prosecution based on future speech risks irreparable harm, the threat of prosecution based on past speech does not. And Hess has made no showing, at least not with any specificity, that the terrorist-threat statute will chill his future speech.” The court noted that he could “avail himself of expeditious state-court procedures to litigate his First Amendment defense against a good-faith prosecution.” It rejected his claim that the pressures of having to defend against the charge constituted sufficient irreparable harm.