Case 2020CF001612 Document 40 Filed 08-12-2020 Page 1 of 33

FILED
08-12-2020
CIRCUIT COURT
DANE COUNTY, WI
For Official
2020CF001612
Use
STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY
BRANCH 11

STATE OF WISCONSIN,

Plaintiff,
v. Case No. 2020CF1612

JEREMY RYAN,

Defendant.

MOTION TO DISMISS

Jeremy Ryan, by attorney Guy Cardamone, moves the Court to dismiss the

information as an unconstitutional violation of Mr. Ryan’s rights under the First

and Fourteenth Amendments of the United States Constitution, and Article I, Sec-

tions 1, 3, and 4 of the Wisconsin Constitution, and states in support the following:

Introduction

In late June of 2020, Jeremy Ryan was arrested and charged with the follow-

ing:

1. One count of stalking, under Wis. Stat. § 940.32(2);

2. One count of terrorist threats, under Wis. Stat. § 947.019(1);

3. One count of unlawful use of computerized communication systems,

under Wis. Stat. § 947.0125(2); and

4. One count of unlawful use of a telephone, under Wis. Stat. §

947.012(1).

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The charges are based on Ryan telling Sheriff Mahoney that he planned to release

Mahoney’s personal address (commonly called “doxing”) and telling Mahoney of

a planned protest outside his private home unless another protester was released

from segregation. Ryan’s conduct, although vehement (at-times caustic) and cer-

tainly unpleasant, is protected by both the U.S. Constitution and the Wisconsin

Constitution. As explained below, the charges leveled against him not only violate

Ryan’s right to free speech and peaceful assembly, they also stand as a selective

prosecution. For these reasons, the defense moves to dismiss the criminal com-

plaint.

I. Context Matters: Jeremy Ryan’s Story and the Madison Protests.

In order to understand this case and why these charges are unconstitu-

tional, it’s necessary to understand and give context to Jeremy Ryan and his pro-

testing. Ryan is not a random Madisonian who decided to call and text Mahoney

and urge the release of a protester from solitary confinement. Ryan is well-known

in the Madison community and a seasoned protester. Ryan and Mahoney have a

history, including a chain of correspondence from when Ryan was locked up in

Dane County Jail for 21 months, awaiting trial on nuclear terrorism charges.1 And

Ryan wanted Mahoney to release Devonere Johnson (aka Yeshua Musa) from seg-

regation—a place that has repeatedly been condemned for its health and safety

hazards. What follows is the context that the criminal complaint omits.

1See Supplemental Narrative at 3: “[Mahoney] said [Ryan] had never been threatening in this
manner before, but when he was incarcerated in the Dane County Jail, he would send notes de-
manding his own release and threatening to sue him.”

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A. Ryan is a seasoned and well-known protester and political figure.

Ryan first stepped into the social-activism spotlight in 2011, during the pro-

tests against Act 10.2 Ryan “organized singlalongs and led civil disobedience ac-

tions including some designed to test rules limiting the display of signs and ban-

ners.”3 While protesting at the Capitol, Ryan repeatedly emphasized that he en-

gaged only in passive resistance; violence was never an option.4 Examples of Ryan’s

behavior in 2011 include yelling insults like “yellow journalism” and “why don’t

you do your job” outside the press room at the Capitol, as well as chanting about

Dick Wheeler, the founder of the Wheeler Report.5

Ryan wheeled around on a Segway and became known as “Segway Jer-

emy.”6 By November 2011, Ryan had received 14 citations, most of which were for

disorderly conduct.7 He contested all citations: 10 were dismissed, and he received

one conviction for prohibited conduct which “came when he did not show up for

2 Karen Rivedal, Who is Jeremy Ryan? The record is mixed, Wisconsin State Journal, Nov. 26, 2016, ¶
2.
3 Id.
4 Id. ¶ 3.
5 Steven Elbow, Police reports detail peculiar behavior at Capitol, The Capital Times, Sept. 26, 2012,

¶¶ 9, 11.
6 Id. ¶ 9.
7 Clay Barbour, Wearing out their welcome: Protesters still at Capitol, irking lawmakers, Wisconsin

State Journal, Nov. 22, 2011, ¶ 24.

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a court date.”8 This was taken during one of his arrests for protesting at the Capi-

tol.

After the Act 10 protests, Ryan continued to participate in local politics. He

ran several unsuccessful political campaigns: once as a candidate for the 76th As-

sembly District in Wisconsin in 2012, and then twice as a Republican candidate

Photo by State Journal Archives.

Taken from article: Bill Novak, Frequent protester known as ‘Segway Jeremy’ face life in prison for alleged
radioactivity plot, Wisconsin State Journal, Oct. 26, 2018.

opposite Congressman Paul Ryan in the 1st Congressional District House of

8 Id.

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Representatives primary in 2014 and 2018.9 He also took part in the initial Black

Lives Matter protests in 2015 after Tony Robinson was fatally shot.10 Ryan issued

statements about the shooting and bankrolled provocative and profane yard signs

and stickers used by protesters, including one in his “front yard that read, ‘(Exple-

tive) the police! Jail Matt Kenny!’”11 By this point, it’s clear that Ryan has been on

the local law enforcement’s radar for some time.

That fact became apparent in November 2016, when Ryan called 911 after

coughing up blood.12 Because of a “safety alert” on Ryan, police “searched him

outside his house before allowing an ambulance crew to approach and treat

him.”13 The report from that night also noted that one officer advised the respond-

ing agent, “that Jeremy Ryan did have a history of attempting to provoke large

police responses.”14

This is all meant to demonstrate that Ryan did not appear out of thin air

this summer. Rather, he is a staple of Madison politics and protests, and officers

are familiar with his insufferable, yet peaceful, antics. His tactics have always

fallen along the lines of civil disobedience and were never violent. But it is easy to

see how much simpler (and less irritating) controlling potential protests would be

9 See Kenosha News Staff, Candidates for Congress discuss bipartisanship, Kenosha News, July 10,
2018; see also Judith Siers-Poisson, First Congressional District Candidate Interview: Jeremy Ryan, Wis-
consin Public Radio, Aug. 6, 2018.
10
Rivedal, supra ¶ 11.
11 Id.; Karen Rivedal, Madison police ‘safety alert’ delays medical aid to man on 911 call, Wisconsin

State Journal, Nov. 26, 2016, ¶ 21.

12 Id. ¶ 1.
13 Id.
14 Id. ¶ 15.

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if Ryan were not involved and could not exercise his First Amendment rights. As

it stands, the initial Black Lives Matter movement in 2015 was not Ryan’s last brush

with authority. The latest chapter in the Ryan saga, and the one that acquainted

him with Mahoney and gave him a new moniker, came in October 2018, when he

was arrested on charges of nuclear terrorism.

B. Ryan’s federal charge for nuclear terrorism was unfounded and even-
tually dismissed.

On November 7, 2018, a grand jury returned a one-count indictment against

Ryan, charging that he knowingly and unlawfully attempted to possess radioac-

tive material with the intent to cause death or serious bodily injury, in violation of

18 U.S.C. § 2332i(a)(1). That statute is called the nuclear terrorism statute. At first

glance of the charges, it appears that Ryan was plotting to kill somebody with nu-

clear material—Polonium-210. Ryan, in fact, contacted an undercover FBI agent in

March 2018, “asking ‘How long would it take the poison [Polonium-210] to kill

someone after ingested? I’m looking for something that’s very rare/difficult to get

a hold of. Also that doesn’t show symptoms immediately but kills them fairly soon

after.’”15 Pretty sinister stuff.

But in follow up emails it was apparent that Ryan was going to use it on

himself. And in his post-arrest interview with the FBI, Ryan insisted that the polo-

nium was for himself—a back-up plan that involved a substance that would shut

down his organs in a short period of time so it would look like the end stages of

15 R.68:14.

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cancer.16 As the case drew closer to trial, the disclosures were clear: the govern-

ment lacked “any evidence that Ryan intended to possess the Po210 for the pur-

pose of nuclear terrorism or for anything other than his ‘backup plan.’” 17 Ryan

intended to use the polonium to kill himself.18

Ultimately, the government dismissed the nuclear terrorism charge, and

Ryan pled guilty to attempting to possess radioactive material.19 At sentencing,

United States District Court Judge James D. Peterson emphasized he was “per-

suaded that [Ryan’s] attempted crime was committed during a mental health crisis

in which he entertained thoughts of self-harm, and some grandiose, quixotic, and

potentially dangerous delusions. I do not believe that the defendant really wants to hurt

anyone.”20 Ryan was sentenced to time-served with two years of supervision.21

So Ryan’s most “violent” behavior (getting radioactive material) ended up

not being violent at all. Rather, it was a mental-health crisis—a botched attempt to

take his own life. Ryan has embraced the experience and refers to himself both

publicly and on his blog with the moniker “nuclear terrorist.” In a recent blog post,

Ryan explained the language he used with Mahoney, saying that “the way I

worded it was so obviously a burn on the FBI and US Attorneys [sic] office for

16 See id. at 8: “Let’s say hypothetically the target had cancer but the cancer had very recently been
cured. Would this look like something that may happen after that? As in the target gets sick and
people knew the target had cancer at some point recently.”
17 Def. Br. at 26.
18 Jackson Danbeck, “Segway” Jeremy to be released after pleading guilty to trying to buy radioactive

substance, NBC15, Feb. 12, 2020, ¶ 3.

19 Ed Treleven, Protester and ex-candidate to plead guilty to seeking nuclear material, but would avoid

prison in deal, Wisconsin State Journal, Aug. 15, 2019, ¶ 2.

20 R.214:5 (Statement of Reasons) (emphasis added).
21 Id.

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their horrible prosecution. I became the first person in fact to get charged under 18

USC 2332i—Acts of Nuclear Terrorism and subsequently the first person to beat

that charge.”22 The title of his blog reads: “Jeremy MotherFucking Ryan: The Nu-

clear Option.” Clearly, Ryan has reclaimed the old federal charges as a way to

publicize his activity and garner attention. He is not a nuclear terrorist, but it cer-

tainly helps his radical and sardonic image to be referred to as one.

C. Ryan’s behavior is peaceful and not unusual when viewed alongside

nationwide Black Lives Matter protests and local Madison protests.

It is important to not only give some background on Ryan, but to contextu-

alize his actions within the recent Madison protests and activist tactics as a whole.

The majority of the protests in Madison, WI, this spring and summer have been

associated with the Black Lives Matter (BLM) movement.23 Although BLM first got

its start in 2013 after the acquittal of George Zimmerman, in 2020 “there’s been a

big shift in public opinion about the movement as well as broader support for re-

cent protests.”24 Supporters now include NASCAR and the NFL, and recent polls

suggest “that about 15 million to 26 million people in the United States have par-

ticipated in demonstrations over the death of George Floyd and others in recent

weeks.”25

22 Jeremy Ryan, Dane County DA and Sheriff Trump Up Fake ‘Terroristic Threats’ Case Against Activ-
ist, segwayjeremy.com, ¶ 3.
23 See Isaac Chotiner, A Black Lives Matter Co-Founder Explains Why This Time Is Different, The New

Yorker, June 3, 2020, ¶ 1.

24 Larry Buchanan et al., Black Lives Matter May Be the Largest Movement in U.S. History, The New

York Times, July 2, 2020, ¶ 15.

25 Id. ¶¶ 2, 15.

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An increasingly popular form of protests in the digital age is called doxing

(or “doxxing”). This term “refers to the practice of using the Internet to source out

and collect someone’s personal and private information and then publicly releas-

ing that information online.”26 Anyone with a computer can dox someone else.

And both sides of the political spectrum use doxing as a political tool; whether it’s

the right-leaning site GotNews.com publishing the addresses of more than 200 ar-

rested Inauguration Day protesters or social media users identifying “Unite the

Right” participants.27 For protesters, and Ryan, doxing “is a tactic that the power-

less can effectively use against the powerful.”28 After all, many newly-identified

tiki-torch bearers from Charlottesville lost their jobs as a result of social-media

sleuths.29

Recently, doxing has drawn results and scorn. After demonstrations in ma-

jor cities, along with targeted doxing, the City Council in Minneapolis “pledged to

dismantle its police department”; lawmakers in New York “repealed a law that

kept police disciplinary records secret”; and lawmakers in Mississippi “voted to

retire their state flag, which prominently includes a Confederate battle emblem.”30

Madison has been no different. It has been awash with protests, including a

demonstration organized by Freedom, Inc. in early June, which convened at the

26 Beth Brindle, What is doxxing?, HowStuffWorks, Feb. 23, 2015, ¶ 1.

27 Rachel Kurzius, Why do these activists publish people’s addresses but fear the same treatment?, The
Washington Post, Jan. 9, 2019, ¶ 3.
28 Bruce Schneier, The Rise of Political Doxing, VICE, Oct. 28, 2015, ¶ 10.
29 Kurzius, supra ¶ 3.
30 Id. ¶ 26.

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Dane County Jail and then proceeded to halt at the intersection of John Nolen and

North Shore Drive.31 The group held up traffic for hours as they danced, sang, and

chanted the names of men and women killed by police officers.32 Following that

protest and several others, a Common Council meeting scheduled for the next day

added an additional item to the agenda: creating the Madison Police Department

(MPD) Ad Hoc Recommendation Oversight Committee.33 That same month, Mad-

ison Mayor Satya Rhodes-Conway “signed on to former President Barack

Obama’s pledge calling on mayors to review their police department’s use-of-force

policy and ensure common sense policy reforms,” and issued a statement where

she assured the people of Madison that she “will continue to work closely with

Acting Chief Wahl to ensure MPD continues upon the journey for meaningful and

lasting police reform with all due diligence.”34

Most notably, on June 29, the Madison School Board voted to cancel a con-

tract with MPD for school resource officers for the upcoming school year.35 Alt-

hough School Board President Gloria Reyes had initially been against the removal

of police from Madison schools, she “dropped her opposition to removing the of-

ficers as activists amplified their demand . . . including demonstrating in front of

31 Jonah Chester, et al., Protests Continue Monday in Downtown Madison, WORT 89.9 FM, June 1,
2020, ¶ 2.
32 Id. ¶¶ 2, 4.
33 Id. ¶ 39.
34 Abigail Becker, After working on police reform for five years, Madison officials have a ‘moment’ to act

on it, The Capital Times, June 9, 2020, ¶ 10 (first quote); Satya Rhodes-Conway, Now Is Time For
Change: A message from Mayor Rhodes-Conway, City of Madison website, June 8, 2020, ¶ 11 (second
quote).
35 Emily Hamer, Madison School Board votes to pull police from high schools, Wisconsin State Journal,

June 30, 2020, ¶ 2.

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her home and painting ‘Police free schools’ in giant yellow letters on West Dayton

Street.”36 Following the doxing of Ms. Reyes, local activists have regularly demon-

strated in front of officials’ homes. Protesters have continued to utilize the same

tactics, even as recently as July 25.

On that Saturday night, “scores of protesters with speakers, generators and

a bullhorn” showed up outside of Dane County DA Ismael Ozanne’s home “and

stayed for six hours blasting music, shouting profanity, chanting slogans, and call-

ing him and his family a racist.”37 All in the hope that Ozanne would drop charges

against two recently-arrested Black activists.38 Despite the bullhorns, the speakers,

the profanities, and writing anti-police slogans on Ozanne’s garage, it’s worth not-

ing that no protesters were arrested while demonstrating outside his home.39

D. Ryan hoped to release Yeshua Musa from Dane County Jail segrega-
tion.

The Court has a clear idea of Ryan and Mahoney and their relationship, as

well as an idea of “doxing,” but before addressing the legal arguments in support

of dismissal there is one other actor in this scene: Yeshua Musa (aka Devonere

Johnson). Musa is a Madison activist who (until his arrest) “ha[d] been present at

every protest following Floyd’s death.”40 He was arrested outside Cooper’s Tavern

36 Id. ¶¶ 5, 6.
37 Chris Rickert, Faced with late-night protest at his home, DA Ismael Ozanne says he won’t be intimi-
dated, Wisconsin State Journal, July 27, 2020, ¶ 2.
38 Id.
39 Id. ¶ 6.
40 Molly Beck, Madison man whose arrest sparked night of violence in capital city is charged with extor-

tion by feds, Milwaukee Journal Sentinel, June 26, 2020, ¶ 11.

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on June 23, “after he brought a baseball bat and a bullhorn into the tavern and

shouted at customers.”41 His highly-publicized arrest led to protests and demon-

strations that soon “turned violent and threatening as protesters entered a private

condo building and forced a driver from a car, and assaulted at least two people

— including a state senator.”42 Hundreds of protesters dragged the statue Forward

(commemorating Women’s suffrage) down the 100 block of State Street, broke

windows in the Tommy G. Thompson state building, and tore down the statue of

an abolitionist who died trying to end slavery during the Civil War.43

In the wake of those activities, Madison Mayor Satya Rhodes-Conway re-

leased a statement (the next day), vowing that protesters would be held accounta-

ble for engaging in violence and reiterating that “[w]e need to separate First

Amendment protests from those engaged in criminal conduct.”44 It is extremely

important to note that Ryan’s name is not associated with these violent, Tuesday

night protests. Unlike the protesters who destroyed statues, assaulted a state sen-

ator, and engaged in criminal conduct, Ryan aired his grievances peacefully. He

live-streamed all his actions.45 And his behavior that night was not directed at

monuments to change (ending slavery and getting women the right to vote); his

actions were directed at conditions in the Dane County Jail, particularly Musa’s

41 Id.
42 Id. ¶ 13.
43 Dylan Brogan, Statues toppled, senator punched, Isthmus, June 24, 2020, ¶¶ 4, 17, 35.
44 Id. ¶ 35.
45 See Live Protests USA, WOKE, screenshot from youtube.com, June 2, 2020, 1:02am (attached).

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treatment in segregated housing. But unlike the night’s protesters, Ryan never en-

gaged in violence in his effort to generate change.

E. Ryan’s focus was on releasing Musa from segregation: a dangerous

and inhumane holding area at Dane County Jail.

At this point, it’s necessary to take a step back and discuss why Ryan would

advocate for Musa’s release from segregation. Yes, Musa is a fellow protester and

many believe that Musa’s arrest was unjust, but Ryan was concerned with more

than that—Ryan had been in Dane County Jail and knew just how awful segrega-

tion could be.

And he’s not the only one to raise concerns about the County Jail generally,

and segregation specifically, in recent years. In December 2016, the consultant firm

Mead & Hunt released a revised study of the Dane County Jail, which included

the following observations:

• Of the total bed count, 24 cells designated as administrative seg-

regation or isolation which are remotely located, makes it diffi-
cult for observation.46

• The number and location of the cellblocks makes it impractical

for direct supervision. Consequently, most of the cellblocks are
not within view of an officer, increasing opportunities for and/or
the likelihood of abuse and violence amongst inmates.47

• Although Administrative Confinement is defined by state stand-

ards and agency policy as being non-punitive, in fact all inmates

46 Mead & Hunt, Dane County Jail and Sheriff’s Office: Part I – Health and Life Safety Assessment of
City/County Building Jail, Part 1 – Health and Life Safety, rev. Dec. 2016, 2.
47 Id. at 5.

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on AC status are housed in punitive conditions, both in terms of

the physical environment and lack of out of cell and recreation
opportunities.48

• The CCB is an unsafe environment for inmates with mental ill-

ness, which is the case for 78% of males and 92% of female in-
mates admitted to RH [Restrictive Housing].49

• There are no appropriate mental health or medical housing units

(cellblocks) within the CCB or PSB that meet the more acute treat-
ment needs such as an infirmary, detoxification housing, acute
mental health or sub-acute mental health treatment needs.50

The report ultimately recommended against renovation of the City County

Building, which houses one portion of the Dane County Jail, and stated that the

“age of the building, outdated technology, and poor physical conditions of the

building, result in numerous risks and hazards to the staff, inmates, and volun-

teers.”51

Ryan, having spent time in the Dane County Jail, was aware of these condi-

tions. So was Mahoney. In fact, Mahoney “believes replacing the 60-year-old jail is

the only option” and “is concerned that isolation makes mental illness worse.”52

And, according to an article, “the sheriff acknowledges that there is asbestos, lead

48 Mead & Hunt, Dane County Jail and Sheriff’s Office: Part I – Health and Life Safety Assessment of
City/County Building Jail, Executive Summary, rev. Dec. 2016, 8.
49 Id. at 10.
50 Id. at 19.
51 Id. at 9.
52 Dylan Brogan, Shut it down, Isthmus, April 13, 2017, ¶ 32; Adam Geller, Jailed, some mentally ill

inmates land in lockdown, Wisconsin Law Journal, Sept. 22, 2014, ¶ 20.

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and other safety hazards at the City County Building Jail” and “he calls the facility

‘inhumane’ and ‘dangerous.’”53

Photo by AP Photos/Morry Gash.

Taken from article: Adam Geller, Jailed, some mentally ill inmates land in lock-
down, Wisconsin Law Journal, Sept. 22, 2014.

This is all to say that Ryan’s actions and words cannot be viewed in a vac-

uum—context matters. And Ryan’s history, his nuclear materials conviction, the

BLM movement, and Madison protests and jail conditions all play an important

role in explaining Ryan’s behavior toward Mahoney. What follows are the facts

53 Brogan, Shut it down, ¶ 5.

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from the criminal complaint and discovery, the only exceptions are specifically

noted.

II. Facts of this case

On June 24, 2020, Detective Gouran learned that Sheriff David Mahoney

(the elected official in charge of Dane County Jail) had received text and Facebook

messages from Jeremy Ryan.54 In those messages, Ryan said that he would dox

Mahoney—release Mahoney’s personal information (address, phone number,

email address), along with Mahoney’s family’s information—unless a specific in-

mate (Yeshua Musa) was released from segregation at Dane County Jail.55 Ryan

stated that segregation was “cruel and inhumane” and accused Mahoney of plac-

ing the inmate in danger.56 Faced with these facts and apprehensions, Ryan prom-

ised to have 600 people assemble at Mahoney’s home to protest by publicly releas-

ing his information, and threatened to “flood” the sheriff with calls.57 The texts

were filled with expletives and had a picture of a background report showing Ma-

honey’s personal information “so he knows its [sic] legit.”58

Ryan’s promise to release Mahoney’s information is, of course, a form of

doxing. It is important to note here that Mahoney’s address already appeared to

be well-known. As part of Mahoney’s election filings during his campaign for

sheriff, his address was made public record. And Mahoney is, after all, a public

54 R2:2.
55 Id.
56 Id. at 5.
57 R:2:2-3, 4.
58 Id. at 3.

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official.59 What’s more, Mahoney had experienced a protest outside of his home

on June 2—more than 20 days before Ryan’s pledge to release Mahoney’s ad-

dress—without any property damage or arrests.60 So Ryan’s doxing and subse-

quent protest would only be more of the same.

Over the ensuing hours of June 24, Ryan sent Mahoney one texts and three

calls—including leaving a message on Mahoney’s home phone.61 In the message,

Ryan again promised to release the family’s address.62 Ryan did not make any

threats of harm to Mahoney’s wife or family in the message.63 Ryan was clear: he

was “not advocating people to be violent or destructive with this information,”

but that he also hoped people “keep [Mahoney] up all night with the chanting.”64

Ryan then posted comments alluding to his ignominious moniker: “the nu-

clear terrorist.” First, Ryan wrote: “But you’ve left me no choice and I’m a man of

my word… Tick Tick Tick…Kaboom… Doxx target hit!!! Sincerely, Your favorite

nuclear terrorist.”65 He also posted: “His favorite terrorist is about to terrorize his

phone lines lulz…”66 But remember: Ryan first established a relationship with Ma-

honey while he was in Dane County Jail on federal nuclear terrorism charges.

Those charges were dismissed, and Ryan was sentenced to time-served. For Ryan,

59 R2:3.
60 Id.; see also, Discovery Rep. at 6 and 8: Protestors left signs and “flour bougets” all over his
lawn.
61 Id. at 4.
62 Id.
63 Id.
64 Id. at 5.
65 Id.
66 Id.

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the allusion to himself as a terrorist was a way to poke-fun at the sheriff who ig-

nored his countless letters sent from a Dane County Jail cell. Here, “your favorite

nuclear terrorist” is a sardonic, mocking phrase.

Based on the phone calls, text messages, and Facebook posts, the District

Attorney’s Office charged Ryan with one count of stalking, one count of terrorist

threats, one count of computer messaging with the intent to threaten injury or

harm, and one count of telephone harassment. Ryan now awaits this hearing in

Rock County Jail, where he has been detained for over a month.

Before jumping into the analysis, this much has to be clear: Ryan’s charges

are not in themselves unconstitutional. When applied to certain defendants, those

charges can be constitutionally appropriate. This occurs when people actually do

threaten physical harm and stalk, and that behavior violates the law and is not

protected speech. See State v. Hemmingway, 2012 WI App 133, ¶ 16, 345 Wis. 2d 297,

825 N.W. 2d 303 (holding that defendant’s speech and stalking conduct did not

trigger First Amendment scrutiny or protection).

But, the Supreme Court has always maintained that “a statute or a rule may

be held constitutionally invalid as applied when it operates to deprive an individ-

ual of a protected right,” and “in cases involving religious freedom, free speech or

assembly, [the Supreme Court] has often held that a valid statute” was unconsti-

tutional as applied because it interfered with the exercise of those rights. Boddie v.

Connecticut, 401 U.S. 371, 379 (1971); see also Wisconsin Right to Life, Inc. v. Barland,

751 F.3d 804, 832 (7th Cir. 2014) (holding that regulation requiring lengthy

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disclaimer for independent political messages violated the First Amendment as

applied to short radio ads).

Ryan is a self-proclaimed seasoned protester. He has almost a decade of

protests under his belt, from his days as “Segway Jeremey” to his congressional

campaigns, through his somewhat popular blogging as “the nuclear option” or

“the nuclear terrorist.”67 He is a person who wraps himself in the First Amend-

ment and who it protects, despite how unpleasant and annoying and insufferable

his antics can, at times, be. Thus, as explained below, to charge Ryan under these

statutes stifles the exercise of his First Amendment rights. His speech and his

“threatened” conduct are constitutionally protected and these charges not only

stifle his speech but stifle the speech of other like-minded protesters.

III. As-applied to Ryan, the Criminal Complaint Violates His First Amend-
ment Rights.

Even when it’s vehement, caustic, or unpleasant, Ryan’s behavior is consti-

tutionally protected.68 Charging Ryan for that behavior violates the First Amend-

ment.69 Although Ryan’s actions were unpleasant and annoying, both jerks and

saints alike are protected under the First Amendment: “The First Amendment’s

67 Stephanie Fryer, Madison man in court, accused of making threats against Dane County sheriff online,
Fox 47, June 26, 2020, ¶ 9; see also Monica Davey, Allies Have Doubts About Protesters in Wisconsin,
N.Y. Times, Nov. 11, 2011, ¶ 15 (“‘This is done out of passion,’ said Jeremy Ryan, 23, often seen
around the Capitol on a Segway, who added that he had probably received the most citations from
the authorities.”); See Judith Siers-Poisson, First Congressional District Candidate Interview: Jeremy
Ryan, Wisconsin Public Radio, Aug. 6, 2018; see also Segway Jeremy Ryan Announces Candidacy for
Assembly District 76, Wisconsin Citizens Media Cooperative.
68
See New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
69
Also Wis. Const. Art. I; §§ 1, 3, and 4.

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guarantee of free speech does not extend only to categories of speech that survive

ad hoc balancing of relative social costs and benefits. The First Amendment itself

reflects a judgment by the American people that the benefits of its restrictions on

the Government outweigh the costs.” United States v. Stevens, 559 U.S. 460, 469-70

(2010). Ryan posted his demands on Facebook, a different kind of public forum

that “allow[s] a person with an Internet connection to ‘become a town crier with a

voice that resonates farther than it could from any soapbox.’” Packingham v. North

Carolina, 137 S. Ct. 1730, 1737 (2017) (quoting Reno v. ACLU, 521 U.S. 844, 870

(1997)).

Charging a protester for airing his intentions to protest on a public forum

is a matter of special concern under the First Amendment because of the ripple

effect: “[t]he severity of criminal sanctions may well cause speakers to remain si-

lent rather than communicate even arguably unlawful words, ideas and images.”

Reno, 521 U.S. at 871-72. For Ryan and so many other outspoken advocates, “one

of the prerogatives of American citizenship” is the ability to voice “not only in-

formed and responsible criticism,” but to speak imprudently as well. Baumgartner

v. United States, 322 U.S. 665, 673-74 (1944); see also Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988) (“[P]ublic figures as well as public officials will be subject to

‘vehement, caustic, and sometimes unpleasantly sharp attacks.’”(internal citation

omitted)).

Here, imposing criminal sanctions on this type of behavior chills speech and

disregards the beauty of the First Amendment: for people to criticize public men

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foolishly and without moderation. Id. Ryan acted without moderation and without

concern for Mahoney’s personal feelings. Ryan also doxed Mahoney. But, as self-

ish as these actions might have been, they do not merit criminal sanctions. And

imposing sanctions violates Ryan’s First Amendment speech and assembly rights.

Ryan could have shown up at Mahoney’s home with a group of 600 protes-

tors without advance notice and walked away unscathed. Instead, he called Ma-

honey beforehand and briefed him on upcoming constitutionally-protected action.

The protesters at Mahoney’s home on June 2 were not arrested. They were not

dragged into county jail and held there for over a month. The only difference be-

tween Ryan and the previous protesters is that Ryan posted about his promised

action on Facebook and directly contacted Mahoney. If going to a public official’s

home and protesting is protected conduct, then merely forecasting that conduct

must be protected as well. The axiom is, the greater assumes the lesser, and here

the greater action (physically protesting at Mahoney’s house, which is protected

under the First Amendment) must assume the lesser (talking about such protest-

ing).

The Supreme Court supported this axiom in NAACP v. Claiborne Hardware

Co., where it held that “[a]n advocate must be free to stimulate his audience with

spontaneous and emotional appeals for unity and action in a common cause” and

“[w]hen such appeals do not incite lawless action, they must be regarded as protected

speech.” 458 U.S. 886, 928 (1982) (emphasis added). Ryan’s appeals to assemble may

have incited lawful protest, and so they must be protected speech.

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Case 2020CF001612 Document 40 Filed 08-12-2020 Page 22 of 33

A. Ryan’s comments to Mahoney do not fall within any unprotected cat-

egories of speech and therefore remain protected.

During his interaction with Mahoney, Ryan told the sheriff via text message

and Facebook that he was going to “publicly release all of [Mahoney’s] personal

information and that of his family members” including addresses, phone num-

bers, and email addresses unless his demands were met. R.2:2. The purpose of re-

leasing all of this information was to draw a crowd of protestors to Mahoney’s

home. See id. at 5. Ryan hoped that this promise of protest would push Mahoney

to remove a demonstrator who had recently been arrested from segregation. Id.

Even though Ryan was assertive with his demands to Mahoney, his speech

never reached the level of true threats. A statement qualifies as a “true threat,” a

type of unprotected speech that may be regulated and punished, if it is “a state-

ment that a speaker would reasonably foresee that a listener would reasonably

interpret as a serious expression of a purpose to inflict harm, as distinguished from

hyperbole, jest, innocuous talk, expressions of political views, or other similarly

protected speech.”70 Ryan never threatened violence or any kind of harm. He

threatened to release information that was already largely public in order to spur

on peaceful protests. R.2:3.

Ryan’s group may have proven loud and obnoxious and may have indeed

kept Mahoney up throughout the night with chanting from the public street. But,

as the Supreme Court reiterated in Frisby v. Schultz, “a public street does not lose

70
State v. Perkins, 2001 WI 46, ¶ 29, 243 Wis. 2d 141, 159, 626 N.W.2d 762, 770.

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Case 2020CF001612 Document 40 Filed 08-12-2020 Page 23 of 33

its status as a traditional public forum simply because it runs through a residential

neighborhood.” 487 U.S. 474, 480 (1988). Ryan’s speech did not amount to incite-

ment, fighting words, or true threats, and thus, his speech is not unprotected. See

Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-72 (1942); see also In re Doug-

las D., 2001 WI 47, ¶ 17, 243 Wis. 2d 204, 626 N.W. 2d 725 (listing categories of

unprotected speech). In other words, his words and actions fall within the First

Amendment’s purview. The question is whether the charges filed against him chill

both his speech and the speech of other demonstrators.

To be clear, this case isn’t just about Jeremy Ryan; it concerns each and

every person who lives, or works, or even just walks through Madison. Everyone

is affected by how the government responds to protest. Even though Ryan may

not always be the easiest pill to swallow, “[w]e cannot lose sight of the fact that, in

what otherwise might seem a trifling and annoying instance of individual distaste-

ful abuse of a privilege, these fundamental societal values are truly implicated.”

Cohen v. California, 403 U.S. 15, 25 (1971); see also In re Douglas D., 2001 WI 47, ¶ 41

(“[W]e conclude that Douglas’s story, although we find it to be offensive and dis-

tasteful, unquestionably is protected by the First Amendment. Our feelings of of-

fense and distaste do not allow us to set aside the Constitution.”). Ryan’s speech,

although vehement, caustic, and unpleasant, remains protected by the First

Amendment.

B. The First Amendment protects the right to peaceably assemble, re-

gardless of the actions of past, unconnected protesters.

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Case 2020CF001612 Document 40 Filed 08-12-2020 Page 24 of 33

Ryan’s threat to assemble peacefully in front of a public figure’s home can-

not be criminalized for the simple reason that the conduct itself (the protesting and

assumbly) is protected. The First Amendment protects the right to freely assemble

and protest, even in front of a private residence.

As far back as 1939, the Supreme Court has held that “wherever the title of

streets and parks may rest, they have immemorially been held in trust for the use

of the public and, time out of mind, have been used for purposes of assembly.”

Hague v. Committee for Indus. Organization, 307 U.S. 496, 515 (1939). Ryan initially

proposed to have 600 people go to Mahoney’s house and clarified he was not “ad-

vocating people to be violent or destructive with this information.” R.2:2,5. Ryan

also left a message on Mahoney’s home phone, stating that he, and his potential

fellow protestors, would “flood” the sheriff with calls and have people “keep [Ma-

honey] up all night with the chanting” outside his home. Id. at 4, 5.

Although Mahoney may have been concerned by Ryan’s promise to assem-

ble because of a recent night’s violent gathering near the Capitol, the fear of illegal

activity cannot act as an excuse to limit another individual’s rights. The Supreme

Court is clear on that point: “It is well established that, as a general rule, the Gov-

ernment ‘may not suppress lawful speech as the means to suppress unlawful

speech.’”Packingham, 137 S. Ct. at 1738 (quoting Ashcroft v. Free Speech Coalition, 535

U.S. 234, 255 (2002)).

And although Dane County may hope to prevent future destruction by lim-

iting outspoken protesters from gathering, Ryan’s right to assemble and protest

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“does not lose all constitutional protection merely because some members of the

group may have participated in conduct or advocated doctrine that itself is not

protected.” Claiborne Hardware Co., 458 U.S. at 908. Ryan himself did not participate

in violence or destruction in this instance, and the government cannot lump him

in with violent protesters in an effort to restrict his personal right to assemble. Even

though Ryan’s conduct within the public forum was vehement, caustic, and un-

pleasant, it remained protected. And thus, the charges against him have to be dis-

missed.

C. The government’s counterarguments do not change that this violates

Ryan’s First Amendment right to free speech.

The argument for dismissing these charges is straightforward. But antici-

pating that the government won’t simply accept the error of its ways, and do it

without court intervention, there are two potential counter arguments. First, in its

criminal complaint, the government cites Ryan’s “public call to have hostile people

go to Mahoney’s private residence to harass and intimidate him” as the basis for

his charges. However, those public calls never amount to “true threats.” And sec-

ond, although Ryan’s broadcasting of Mahoney’s address might otherwise sup-

port a harassment charge, Mahoney is a public official, and his address is a public

record, so its release is not an invasion of privacy and cannot support a stalking or

harassment charge.

1. Contrary to the government’s first counter-argument: Ryan’s texts

and phone calls do not fall outside protected speech.

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Case 2020CF001612 Document 40 Filed 08-12-2020 Page 26 of 33

Ryan’s expression does not fall under “true threats.” The government may

argue that Mahoney was personally worried about his family’s safety and felt

threatened in the wake of Ryan’s comments. However, “a true threat is a statement

that a speaker would reasonably foresee that a listener would reasonably interpret

as a serious expression of a purpose to inflict harm, as distinguished from . . . expres-

sions of political views, or other similarly protected speech.” State v. Perkins, 2001 WI 46,

¶ 29, 243 Wis. 2d 141, 626 N.W. 2d 762 (emphasis added).

Not only is the test for true threats an objective one, but the totality of the

circumstances must be considered as well. Id. This is not a case where Ryan threat-

ened to physically harm Mahoney or his family. Here, Ryan forecasted a release

of mostly public information about Mahoney in order to create a lawful assembly

in front of his home. See R.2:3.

There was no threat to inflict harm, only a serious expression of a purpose

to engage in the constitutionally protected right to assemble and protest. Indeed,

Mahoney had already experienced a similar protest—on June 2, “a large caravan

of protesters in cars” went to his home, and although they banged on windows

and doors, there was “no destruction of property.” R.2:3. The same behavior that

was fine 20 days earlier, cannot, at the hands of Ryan, be considered a violation.

That is, of course, part of the selective prosecution analysis. But while the defense

is sympathetic to Mahoney’s concern—no one wants 600 people at their home—

Mahoney’s personal sensitivity is not the test. The test turns on the content and

context of the words expressed and those do not amount to a true threat.

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2 Contrary to the government’s second counter argument: Sheriff

Mahoney is a public official and is entitled to less privacy than an
ordinary citizen.

Ryan’s conduct did not amount to unprotected harassment because Sheriff

Mahoney is a public official and the information Ryan released was already public.

The Supreme Court defines a “public official” as a “position in government [that]

has such apparent importance that the public has an independent interest in the

qualifications and performance of the person who holds it.” Rosenblatt v. Baer, 383

U.S. 75, 86 (1966); see also State ex rel. Bilder v. Delavan Tp., 112 Wis. 2d 539, 557, 334

N.W. 2d 539 (1983) (holding that the police chief was a public official). Although

the government may argue that Ryan’s conduct amounted to harassment, an in-

vasion of privacy, that’s not so—even a simple civil action against him for releas-

ing Mahoney’s information would fail.

Because of Mahoney’s status as sheriff and the amount of information he

had to provide for his election, invasion of privacy laws hold even less water in

this case. As the Supreme Court has held: “[E]ven the prevailing law of invasion

of privacy generally recognizes that the interests in privacy fade when the infor-

mation involved already appears on the public record.” Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 494-95 (1975). For invasion of privacy under Wis. Stat. § 895.50,

he must prove: (1) there has been a “public disclosure” of facts, (2) the facts dis-

closed were private, (3) the private matter is one that would be highly offensive to

a reasonable person of ordinary sensibilities, and (4) Ryan acted either unreason-

ably or recklessly as to whether there was a legitimate public interest in the matter

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or with actual knowledge that none existed. See Olson v. Red Cedar Clinic, 2004 WI

App 102, ¶ 8, 273 Wis. 2d 728, 681 N.W. 2d 306; see also Zinda v. Louisiana Pac. Corp.,

149 Wis. 2d 913, 929-30 (1989). That is, there could be no suit.

Moreover, where a matter of legitimate public interest is concerned, no

cause of action for invasion of privacy will lie. Bogie v. Rosenberg, 705 F.3d 603, 614

(7th Cir. 2013) (quoting Van Straten v. Milwaukee Journal Newspaper-Publisher, 151

Wis. 2d 905, 921 (Wis. App. 1989)). In this case, it is clear that the Black Lives Matter

(BLM) movement, the incarceration of a prominent protestor, and conditions

within Dane County Jail are all legitimate public interests. Ryan threatened to dis-

close public facts about a public figure, concerning a legitimate public interest. His

behavior never crossed from protected speech. Sheriff Mahoney is responsible for

some aspect of government operations. And “criticism of those responsible for

government operations must be free, lest criticism of government itself be penal-

ized.” Rosenblatt, 383 U.S. at 85.

IV. Charging Ryan under these statutes chills speech and is a form of selec-
tive prosecution.

As described above, each action Ryan took is protected. His threat to assem-

ble on a public street, or to call Mahoney to express political disagreement, where

no less protected than the acts themselves. And so to continue with these charges

will not just quiet Ryan, but will stifle others’ speech. Demonstrators will inevita-

bly view Ryan’s arrest as a warning, and worry that they might be taken to Dane

County Jail—a medically-compromised facility with a history of COVID-19

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infection.71 Allowing this to stand would be a warning that in Madison (as op-

posed to the rest of the country) one has to watch what’s said, and what tone it’s

said in. A warning to stop picketing outside homes. To avoid such an effect, and

abide by the Constitution, Ryan’s charges must be dismissed.

Ryan’s case is also unique, not because of its facts, but because of the out-

come: he was charged and he’s been sitting in jail for several weeks. Threats to

protest, threats to “dox” individuals, and threats to assemble outside of a private

home have become the new norm.

In June, BLM protesters surrounded the Contra Costa County Sheriff’s res-

idence in Danville, California.72 The protest was peaceful even as “the caravan

grew as it got closer to Sheriff David Livingston’s home.”73 Protestors prayed and

shared stories of how they experienced excessive force at the hands of law enforce-

ment.74 That same month, D.C. demonstrators swarmed Mayor Muriel Bowser’s

home, calling for the defunding of the district’s police department.75 And in Oak-

land, a “large group of mainly young people chanted the names of the men and

women killed by police” directly outside of Mayor Libby Schaaf’s home.76

71 See Jeff Richgels, 37 inmates in Dane County Jail have tested positive for COVID-19, none hospitalized,
Wisconsin State Journal, May 15, 2020, ¶ 1.
72 Sharon Katsuda, Protesters Take Message to Danville Sheriff’s Home, NBC Bay Area, June 15, 2020,

¶ 1.
73 Id. ¶ 5.
74 Id.
75 WUSA 9 Staff, Updates: Protests against police brutality and social injustice continue Tuesday, WUSA

9, June 13, 2020, at “Saturday.”

76 Julian Glover and J.R. Stone, Oakland police outline reform plan, marchers call on Oakland mayor to

defund police, ABC 7, June 11, 2020, ¶ 9.

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It is clear that gathering at public officials’ private homes has become a new

normal for not just the BLM movement, but also for proponents of reducing stay-

at-home orders and Madisonians calling for the release of jailed activists.77 None

of these groups were dispersed by police, and their leaders were not arrested. The

Dane County Jail is not (yet) overflowing with would-be protestors or doxing

couch crusaders. Why? Because picketing on public sidewalks or streets is a form

of assembly protected by the First Amendment.78

Dane County is selectively prosecuting Ryan because he is the loudest (and

some would say most notorious and probably obnoxious) voice.79 Ryan was solely

charged out of not just the protesters at Mahoney’s home or the protesters in Mad-

ison, but out of the vast array of peaceful demonstrators across the country.

And Ryan is also being prosecuted because he gave the government an op-

portunity to suppress uncomfortable, albeit protected, speech before it happened—

and at that point, could not be stopped. He had the audacity to contact Mahoney

before engaging in other protected acts. The temptation to avoid those protests

and the concerns associated with them was understandably great. It triggered a

77See News 10, People protest outside of Governor Whitmer’s Lansing mansion, WILX 10, Apr. 23, 2020,
¶ 1; see Andrew Merica, Protesters march through neighborhoods, stopping at DA’s house, to demand
release of jailed activists, 27 WKOW, July 1, 2020, ¶ 1.
78 U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right
of the people peaceably to assemble, and to petition the government for a redress of grievances.”) (emphasis
added).
79 Det. Gouran was already familiar with Ryan “from his many media-covered events over the past

several years.” R.2:2. Sheriff Mahoney himself “has had past contacts with Ryan going back to Act
10 protests at the WI State Capitol” and from when Ryan “would send notes demanding his own
release [from Dane County Jail] and threatening to sue [Mahoney].” Id. at 4. Ryan even has his own,
fairly detailed, Wikipedia page: https://en.wikipedia.org/wiki/Jeremy_Ryan.

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set of ad hoc s justifications to try to distinguish Ryan from the thousands of others

who were actually doing what Ryan was threatening.

Choosing one actor out of many is problematic because “the promise of

equal protection of the laws is not limited to the enactment of fair and impartial

legislation, but necessarily extends to the application of these laws.” United States

v. Falk, 479 F.2d 616, 618 (7th Cir. 1973). Here, Ryan’s prosecution violates that

premise.

The view of selective prosecution as denial of equal justice began with cases

of racial discrimination. See Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886). In Yick Wo,

the Court analyzed the prosecution patterns of a San Francisco ordinance and

found that nothing except the “will of the supervisors” explained why only Chi-

nese subjects were being charged for its violation. Id. The Court held that discrim-

ination based on race and nationality in the enforcement of the law “is a denial of

the equal protection of the laws, and a violation of the fourteenth amendment of

the constitution.” Id.

The Seventh Circuit later expanded the concept in Falk, where the defend-

ant alleged that he was singled out for selective and discriminatory treatment not

for violating a statute, but so the government could stifle his participation in anti-

Vietnam, First Amendment activities. Falk, 479 F.2d at 619-20. There, the court held

that discrimination on the basis of the exercise of protected First Amendment ac-

tivities is forbidden by the Constitution. Id. at 620. Going further, the court com-

pared Falk’s punishment to “the conduct of city officials who reinstated criminal

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charges for alleged traffic violations following the defendant’s action in filing an

official complaint charging police misconduct.” Falk, 479 F.2d at 623.

The Wisconsin Courts have echoed the very same sentiment: “[A] defend-

ant may also show that the ‘government’s discriminatory selection for prosecution

is based on a desire to prevent the exercise of constitutional rights or motivated by

personal vindictiveness on the part of a prosecutor or the responsible member of

the administrative agency recommending prosecution.” State v. Kramer, 2001 WI

132, ¶ 18, 248 Wis. 2d 1009, 637 N.W. 2d 35 (internal citation omitted). Simply put,

individuals cannot be punished only as an attempt to limit their ability to practice

their First Amendment rights. The same is true here. Ryan—one of many protes-

tors, demonstrators, telephone pesterers, and Facebook show-boaters—cannot be

singled out and prosecuted for an alleged crime in which every other person is

engaging.

Conclusion

Ryan’s promise to release Sheriff Mahoney’s home address and assemble a

group of peaceful protesters is constitutionally-protected speech. The act of peace-

ful protest is a long-standing, protected exercise that has proven increasingly com-

mon in the wake of BLM and stay-at-home orders. If Ryan had just shown up out-

side of Mahoney’s house with 600 people, signs, bullhorns, and chants, no arrests

would have been made. Instead, Ryan contacted Mahoney and posted his inten-

tions on Facebook. The greater conduct (protesting) must assume the lesser (speak-

ing about protesting), and both must be protected.

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Charging Ryan for this conduct contradicts the beauty of the First Amend-

ment: to speak foolishly at length about public officials and public affairs. Ryan’s

speech may have been vehement, caustic, and unpleasant. It was speech nonethe-

less. Ryan was singled out for prosecution because he has the loudest voice, and

spoke first. But being the loudest at exercising one’s First Amendment rights is not

a crime. For these reasons, the criminal complaint against Ryan must be dismissed.

Dated this Wednesday, August 12, 2020, at Madison, Wisconsin.

Respectfully submitted,

Electronically Signed By,

Guy Cardamone
Wis. Bar No. 1106425
Assistant State Public Defender
Law Offices of the Wis. State Public Defender
17 S. Fairchild, Floor 2
Madison, WI 53703
Direct: (608) 266-9156

Legal Research & Writing Contributed by

Megan Diermeier
Legal Intern, Federal Defender Services, Inc.
University of Wisconsin Law School
Juris Doctor Candidate, May 2021

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