Griffin's nuanced ruling concluded that some of Hayden's emails to Dieng do appear to be illegal threats. But the state, Griffin noted, didn't allege that Hayden had threatened Dieng. The Chittenden County State's Attorney's office focused only on the fact that his contacts were repetitive and harassing.
So Griffin considered instead whether the First Amendment allows an individual to harass public officials with repeated messages via their official, public channels.
His answer: "This Court finds that, as a matter of law, a person's sending emails to an official's public, official email account with the intent to harass the official is core political speech."
One of Hayden's emails to Dieng last October taunted the councilor on this point. "NEWS FLASH — you are a public figure," Hayden wrote. "Cops can't help ya. ha ha ha."
State's Attorney Sarah George said her office isn't giving up on the charge. In an email to Seven Days, she wrote: "Based on the Court’s analysis, the State intends to re-file the charge against Mr. Hayden with language reflecting the Court’s belief that Mr. Hayden’s emails to Mr. Dieng met the legal definition of a true threat."
While Griffin dismissed the case involving Dieng, he allowed an aggravated disorderly conduct charge to proceed. In that case, also prosecuted as a hate crime, the state said Hayden stomped around outside Weinberger's office yelling for the "Jew" mayor to come out, causing staff to lock their doors or flee.
Griffin concluded that Hayden's outburst was "tumultuous" and did not serve a clear expressive purpose. The behavior was in line with Hayden's previous efforts to target Weinberger for his Jewish heritage, though Griffin suggested that Hayden's emails to the mayor, like his to Dieng, could be defended as protected speech.
Hayden remained in prison in Swanton. Last week, he mailed a handwritten letter to the court requesting the removal of his latest court-appointed attorney, and said he plans to ask the court to reduce his bail.