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Free Speech

10-Year "Harassment"/"Stalking" Sentence for Repeatedly Criticizing Police Detective Violated First Amendment, Amicus Brief Argues

Eugene Volokh | 10.30.2026 11:10 AM

I was delighted to sign on to this brief in State v. McMenamy (Mo. Ct. App.) just filed by the ACLU of Missouri Foundation and the Wash. U (St. Louis) First Amendment Clinic, on behalf the ACLU of Missouri and Profs. Jane Bambauer and Lyrissa Lidsky and me. The Introduction:

The First Amendment and article I, § 8 of the Missouri Constitution broadly protect the right to speak to the public about other people. This is true even when the speech "is intended to trouble or annoy, or to make another timid or fearful." United States v. Sryniawski, 48 F.4th 583, 587 (8th Cir. 2022). And it is true even when speech uses "social pressure and the 'threat' of social ostracism … to embarrass others or coerce them into action." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982). While individuals who are the subjects of unwanted speech may be able to limit some speech directed to them, they cannot limit offensive speech about them directed to others. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

Contrary to this established law, Matthew McMenamy was convicted and sentenced to 10 years in prison for openly and vigorously criticizing a local police detective he believed had engaged in misconduct. Mr. McMenamy used his public social media accounts and publicly distributed flyers to attempt to draw the community's attention to the detective's actions. He expressed his hope that his revelations would result in the officer's removal.

While Mr. McMenamy's speech was certainly concerning to the detective, the circuit court did not make any finding that either the flyers or any one of the dozens of social media posts submitted as evidence fell within any category of unprotected speech, such as true threats. Nor could the circuit court have done so, as none of Mr. McMenamy's speech was outside the bounds of the First Amendment's protection. His convictions for harassment and stalking violate the First Amendment and should be reversed.

The opening paragraph of the section on the facts (for the full discussion of the facts, read the brief):

In August 2023, Matthew McMenamy began posting on social media about what he viewed as misconduct and racism by a local police detective, who years before had been involved in Mr. McMenamy's involuntary commitment. See State's Exs. 60A–M. Mr. McMenamy sought to publicize one of the detective's public Facebook posts, where the detective wrote: "If black lives matter then why are they shooting and killing each other at an alarming rate." State's Ex. 60B ("Let's make this racist post go viral … #BLM #RacistCop ….); State's Ex. 60A ("The people want answers. Is [detective] a racist? Does he feel that people of color do not matter because of an idea that they murder each other at an alarming rate?"). Many of Mr. McMenamy's posts were aimed at sharing with the public his concerns about the detective's fitness for his position. For example, Mr. McMenamy posted he was "in talks with a billboard company to put [detective's] racist quotes up next to a picture of him in uniform" because........

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