Andrew Hess v. Oakland Cnty., Mich.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0131p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ANDREW HESS,

│

Plaintiff-Appellant, │

│

v. > No. 25-1784

│

│

OAKLAND COUNTY, MICHIGAN; KAREN MCDONALD, │

Oakland County Prosecutor, Oakland County, │

Michigan; MICHAEL J. BOUCHARD, Oakland County │

Sheriff, Oakland County, Michigan; MATTHEW │

PESCHKE, Sergeant, Oakland County Sheriff’s Office, │

Oakland County, Michigan, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:25-cv-10665—Gershwin A. Drain, District Judge.

Argued: March 19, 2026

Decided and Filed: May 5, 2026

Before: BOGGS, READLER, and DAVIS, Circuit Judges.

_________________

COUNSEL

ARGUED: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor,

Michigan, for Appellant. Zachary C. Larsen, CLARK HILL PLC, Lansing, Michigan, for

Appellees. ON BRIEF: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann

Arbor, Michigan, for Appellant. Robert N. Dare, CLARK HILL PLC, Lansing, Michigan, for

Appellees.

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 2

_________________

OPINION

_________________

BOGGS, Circuit Judge. In December 2023, Andrew Hess attended an election recount

conducted in an office at the Oakland County, Michigan, courthouse. He raised allegations of

ballot-box tampering to the county’s director of elections, Joseph Rozell. Unsatisfied with

Rozell’s assurances, Hess exited the recount room and entered the lobby of the courthouse,

where he said “hang Joe for treason” to a fellow member of the public. Although Hess was

allowed to remain at the recount, Oakland County prosecutors charged him with a felony months

later under Michigan’s terrorist-threat statute based on that comment. Hess’s charge was

dismissed after the Michigan Court of Appeals, in a different case, held the state’s terrorist-threat

statute facially unconstitutional. Hess then filed a 42 U.S.C. § 1983 suit in the Eastern District of

Michigan, including a claim that the attempted prosecution violated his First Amendment rights.

The Michigan Supreme Court reversed the Court of Appeals, however, and state-court

litigation continues to define the boundaries of the terrorist-threat statute’s constitutionality.

That reversal revived the possibility that Oakland County could prosecute Hess under the

terrorist-threat statute after all. Seeking to forestall this possibility, Hess requested one of the

most dramatic remedies in a federal court’s arsenal: a preliminary injunction against a threatened

criminal prosecution by a separate sovereign. The district court denied his motion. 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. But because the threatened prosecution

targets only his past speech, as opposed to his future speech, and because state-court procedures

afford expeditious opportunities to litigate a First Amendment defense, he has failed to show

irreparable harm. We therefore affirm the denial of his requested preliminary injunction.

I

A

We recite the facts based on the record presented to the district court, drawing primarily

on police reports and testimony from preliminary hearings in Hess’s state prosecution.

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 3

The 2023 local elections in Royal Oak, Michigan, included a ballot question about

whether to adopt ranked-choice voting to elect certain municipal positions. A close tally

prompted a recount, supervised by Oakland County Director of Elections Joseph Rozell. The

recount occurred on December 15, 2023, at the Oakland County Courthouse. Andrew Hess

attended the recount, having been “selected as an observer,” according to Rozell. (Rozell did not

specify who selected Hess as an observer, or under what procedures.) R. 12-2, PageID 126.

Other county employees, sheriff’s officers, and members of the public also were present. R. 23,

PageID 522.

Hess and Rozell had met before. In late 2022, Hess attended the Oakland County recount

for two state constitutional propositions. Hess, along with two other individuals, confronted

Rozell during the recount to request changes to ballot-examination procedures. When Rozell

declined, citing state law, Hess “demanded” that sheriff’s officers arrest Rozell “for interfering

with the conduct of the recount.” Officers declined to take any action, and Rozell resumed

supervising the recount without further incident. R. 12-2, PageID 112–13, 118–121.

Hess and Rozell would not meet again until the December 2023 recount, when Hess

alleged that someone had tampered with one of the ballot boxes. Rozell’s confirmation that the

ballot box had remained within the county’s chain of custody did not assuage Hess’s concerns,

prompting Hess to tell Rozell: “Treason is going to look very good on you.” Id. at PageID 128.

Rozell later would testify that Hess “seemed agitated when I told him that we were going to

move forward with the recount,” but Rozell did not seek Hess’s arrest or removal. Id. at PageID

130, 156–57. Hess remained at his observer’s table, and Rozell walked away. Id. at PageID

128. Shortly afterwards, one of the county’s attorneys relocated to a restricted-access table in the

recount room, leading Hess to question why the attorney “gets to be there, but I don’t.” Id. at

PageID 129. Once again Rozell dismissed Hess’s objection, and the conversation ended. Ibid.

At some point following these interactions, but while the recount continued, Hess exited

the recount room and entered the lobby, where Kaitlyn Howard was on duty as a receptionist.

The doors between the lobby and the recount room remained open. Id. at PageID 170–71. It

appears that only three people were in the lobby at this time: Hess, Howard, and a third

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 4

individual who Howard recognized as Braden Giobachi,1 a member of the public who frequently

contacted the Oakland County elections office. Id. at PageID 172–73. Rozell remained in the

recount room, as did all members of the Board of Canvassers. Id. at PageID 142, 185. Howard

alleged that she overheard Hess tell the third individual “[h]ang Joe for treason” in what a

prosecutor stipulated as a “normal conversational tone.” Id. at PageID 172–74. According to

Howard, Giobachi responded, “[t]hat’s too much.” Id. at PageID 176. No other witness to this

exchange has emerged.

Hess returned to the recount room. Howard refrained from taking immediate action,

explaining that she “couldn’t leave [her] position at the front desk” because she “was the only

one guarding it.” Id. at PageID 176. Although Howard would concede that she did not perceive

“any imminent harm” and that Hess had not directed his comment toward her, Howard

eventually reported Hess’s comment to Sheriff’s Officer Lee Van Camp because she did not

“take kindly to that kind of behavior or language.” Id. at PageID 178–181.

Officer Van Camp asked Hess to speak with him in the lobby. Hess agreed and nodded

when the officer asked whether he had said “hang Joe for treason.” Hess explained that “all [he]

did was accuse [Rozell] of a crime” and that hanging is the penalty for treason. R. 16-3, PageID

249. Officer Van Camp allowed Hess to reenter the recount room, where Hess addressed Rozell

during a public-comment period. Hess concluded by stating: “what is the penalty for treason[?]

I’ll let somebody else tell you what it is.” R. 16, PageID 221. Hess then departed the premises

voluntarily; neither Rozell nor any official ever requested Hess’s removal. R. 12-2, PageID 156–

60.

At some point after Hess left, Officer Van Camp approached Rozell to inform him that

Hess had said “hang Joe for treason” in the lobby. R. 16, PageID 222. Although Rozell never

heard that comment firsthand nor observed any visible signs of a threat, he later testified that he

felt “in shock” and notified police in his home jurisdiction to request extra patrols by his

residence. R. 12-2, PageID 137–38, 162. Hess and Rozell have not interacted since the recount.

1The preliminary-examination transcript cautions that this is a phonetic spelling of this individual’s name.

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 5

B

On April 1, 2024, more than three months after the recount proceedings, Oakland County

Prosecuting Attorney Karen McDonald charged Hess under Michigan’s terrorist-threat statute

based on his “hang Joe for treason” statement. R. 1-3, PageID 38. The statute provides that a

person “is guilty of making a terrorist threat” if he “[t]hreatens to commit an act of terrorism and

communicates the threat to any other person.” Mich. Comp. Laws § 750.543m(1)(a). It defines

an “[a]ct of terrorism” as “a willful and deliberate act” that “would be a violent felony” under

Michigan law, that “the person knows or has reason to know is dangerous,” and that “is intended

to intimidate or coerce a civilian population or influence or affect the conduct of government . . .

through intimidation or coercion.” Id. § 750.543b(a)(i)–(iii). Violations are punishable by a

maximum 20 years of imprisonment and $20,000 fine. Id. § 750.543m(3).

An arrest warrant for Hess issued on April 4. Hess was released pending trial on a

personal-recognizance bond with conditions requiring him to refrain from contacting Rozell,

abstain from drugs and alcohol, and surrender his firearms. R. 12-2, PageID 199. The state trial

court conducted a preliminary examination on May 30, 2024, where Rozell and Howard testified.

The court continued the examination to September 6, 2024, where it found probable cause after

hearing argument from counsel. R. 22-3, PageID 449.

While Hess’s prosecution continued, the Michigan Court of Appeals struck down

§ 750.543m(1)(a) as facially unconstitutional because “there is no statutory language suggesting

that the prosecutor must prove that the defendant consciously disregarded a substantial risk that

his communications would be viewed as threatening violence.” People v. Kvasnicka (Kvasnicka

I), No. 371542, 2025 WL 492469, at *4 (Mich. Ct. App. Feb. 13, 2025). It reached this

conclusion by applying the Supreme Court’s most recent true-threat precedent, which requires

prosecutors to prove that “the defendant had some understanding of his statements’ threatening

character” by at least a standard of recklessness. Counterman v. Colorado, 600 U.S. 66, 72–73

(2023).

Kvasnicka I prompted Hess to move to dismiss his charge. Prosecutors opposed Hess’s

motion to dismiss, filing instead a motion to stay proceedings against Hess pending further

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 6

developments in the Kvasnicka litigation. The state trial court sided with Hess and dismissed the

charge on March 6, 2025. D. 20 at 14.

On March 10, Hess filed the instant § 1983 suit in the Eastern District of Michigan,

naming Oakland County, McDonald, Rozell, Oakland County Sheriff Michael Bouchard, and

Oakland County Sergeant Matthew Peschke as defendants. Seeking declaratory and injunctive

relief and monetary damages, he brought claims for violations of his rights under the First,

Second, Fourth, and Fourteenth Amendments, plus state-law tort claims.

Soon after filing his federal complaint, Hess began to fear that McDonald might try to

revive the case against him. On March 28, 2025, the Michigan Supreme Court vacated the

appellate court’s judgment and remanded with instructions to interpret § 750.543m(1)(a) in light

of § 750.543z, which provides that “a prosecuting agency shall not prosecute any person or seize

any property for conduct presumptively protected” by the First Amendment. People v.

Kvasnicka (Kvasnicka II), 18 N.W.3d 308, 308–09 (Mich. 2025) (mem.). Perceiving “the

continuing threat of arrest and prosecution under § 750.543m for his political speech,” Hess

requested that the federal district court “enjoin the enforcement of [the statute] as applied to

[Hess’s] political speech while [Hess’s civil] case proceeds.” R. 12, PageID 64–67. Before the

district court ruled on Hess’s motion, the Michigan Court of Appeals changed course to uphold

§ 750.543m(1)(a) as facially constitutional by implying a recklessness mens rea. People v.

Kvasnicka (Kvasnicka III), No. 371542, 2025 WL 2045006, at *6 & n.2 (Mich. Ct. App. July 21,

2025).

Hess’s motion for a preliminary injunction “relie[d] solely on his First Amendment

claim” and argued “that prosecution under § 750.543m(1)(a) is facially unconstitutional under

Brandenburg v. Ohio, 395 U.S. 444 (1969) [(per curiam)], and unconstitutional as applied to him

because his speech did not constitute a ‘true threat’ under the circumstances.” R. 36, PageID

881. The district court denied Hess’s motion on August 29, 2025, concluding that Hess could

not demonstrate a likelihood of success on the merits of his First Amendment claims.

Specifically, the district court found that Hess is “not likely to succeed” on his Brandenburg

claim, id. at PageID 886, and that “the likelihood of success factor is neutral” regarding his true-

threat argument, id. at PageID 893.

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 7

Three important developments have since occurred. First, on October 6, McDonald filed

a motion with the Michigan trial court to “reinstate” the charge against Hess. D. 20 at 13–15.

That motion remains outstanding, because the parties have agreed to a “stipulation of adjourning

all state-court proceedings” until this interlocutory appeal concludes. Argument Tr. 1:00–2:10.

Second, on October 24, the district court denied in part the civil defendants’ motion to dismiss,

allowing Hess’s First Amendment claim to proceed “against Defendants McDonald, Bouchard,

and Peschke for declaratory and injunctive relief, and Defendant Rozell for all relief.” 2 R. 43,

PageID 911. Both of Hess’s theories for obtaining a preliminary injunction—that

§ 750.543m(1)(a) is facially unconstitutional under the Supreme Court’s incitement precedents,

and unconstitutional as applied to him because he did not communicate a true threat—survived

the motion to dismiss. Id. at PageID 927–33. Finally, on December 29, the Michigan Supreme

Court announced that it would hold oral argument to review the interpretation of

§ 750.543m(1)(a) adopted in Kvasnicka III. People v. Kvasnicka (Kvasnicka IV), 28 N.W.3d 710

(Mich. 2025) (mem.).

II

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). We review the district court’s denial of the

preliminary-injunction motion for abuse of discretion, although we review its underlying First

Amendment analysis de novo. O’Toole v. O’Connor, 802 F.3d 783, 788 (6th Cir. 2015).

As with any preliminary-injunction motion, Hess bears the burden of making a “clear

showing that ‘he is likely to succeed on the merits, that he is likely to suffer irreparable harm in

the absence of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.’” Starbucks Corp. v. McKinney, 602 U.S. 339, 345 (2024)

(quoting Winter, 555 U.S. at 20, 22). But although the traditional four factors apply, Hess faces

an especially demanding gauntlet because “[i]t is a familiar rule that courts of equity do not

ordinarily restrain criminal prosecutions.” Trump v. United States, 54 F.4th 689, 697 (11th Cir.

2The district court also dismissed Oakland County as a defendant. R. 43, PageID 911. Accordingly, we

refer to the requested injunctive relief as running against McDonald.

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 8

2022) (per curiam) (quoting Douglas v. City of Jeannette, 319 U.S. 157, 163 (1943)); see also

Fischer v. Thomas, 78 F.4th 864, 869 (6th Cir. 2023).

Adding to his burden, Hess asks us to restrain not merely a prosecution by a coordinate

branch of government, but rather by a separate sovereign. Such a request raises special concerns

for “Our Federalism.” Younger v. Harris, 401 U.S. 37, 44 (1971). To be sure, we need not

abstain from exercising our jurisdiction, because Hess initiated his § 1983 action in federal court

after the Michigan trial court dismissed the criminal case against him, and because “proceedings

of substance on the merits have taken place in the federal court” before state criminal

proceedings recommenced. Hicks v. Miranda, 422 U.S. 332, 349 (1975). McDonald did not

move to reinstate the charge until after the district court resolved Hess’s preliminary-injunction

motion on a reasonably well-developed record, which suffices for a proceeding of substance on

the merits. See Fischer, 78 F.4th at 869 (citing Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 238

(1984)). But although Hess is entitled to have his claim “considered without regard to Younger’s

restrictions,” the requested injunction nevertheless would “seriously impair[] the State’s interest

in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of

Younger.” Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975).

Hess asserts, in part, that he is likely to succeed on the merits because his “hang Joe for

treason” statement did not constitute a true threat. He claims that a revived prosecution for that

past statement—which would expose him to restrictive bail conditions and, potentially, decades

in prison—would inflict irreparable harm. We agree with his assessment of the merits but

disagree with his irreparable-harm analysis, based on (1) the distinction between threatened

enforcement against past speech as opposed to future speech and (2) the availability of

expeditious state-court procedures to litigate his First Amendment defense.

A

Hess presses two theories explaining why prosecution for his “hang Joe for treason”

comment would violate his freedom of speech. First, Hess argues that Michigan’s terrorist-threat

statute is facially unconstitutional under Brandenburg because the statute does not require

prosecutors to prove that the speech “be directed to inciting or producing imminent lawless

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 9

action and likely to incite or produce such action.” Appellant Br. 16. Second, Hess asserts an as-

applied constitutional challenge that his speech did not constitute a true threat. See id. at 18. His

first theory will likely fail, but his second will likely succeed.

Starting with Hess’s facial challenge, “a statute is facially invalid under the First

Amendment only if its ‘unconstitutional applications’ are ‘substantially disproportionate to the

statute’s lawful sweep.’” Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 481 n.7 (2025)

(quoting United States v. Hansen, 599 U.S. 762, 770 (2023)). Incitement and true threats

represent two of the “few limited areas” where the First Amendment permits content-based

speech restrictions. Counterman, 600 U.S. at 73 (citation omitted). Incitement refers to

“statements ‘directed [at] producing imminent lawless action,’ and likely to do so.” Ibid.

(alteration in original) (quoting Brandenburg, 395 U.S. at 447). True threats, in contrast, are

“‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful

violence.’” Id. at 74 (alteration in original) (quoting Virginia v. Black, 538 U.S. 343, 359

(2003)).

Incitement receives greater protection than true threats because “incitement to disorder is

commonly a hair’s-breadth away from political ‘advocacy.’” Id. at 81 (citation omitted). To

obtain a conviction under a theory of incitement, prosecutors must prove not only that the speech

is directed at producing imminent lawless action and likely to do so, but also that the speaker

acted with “specific intent, presumably equivalent to purpose or knowledge,” to produce such

lawless action. Ibid. True threats, however, are sanctionable even if the speech is not directed at

producing, or likely to produce, imminent lawless action and require prosecutors to prove only a

mental state of recklessness. Id. at 81–82. In other words, while both incitement and true threats

can facilitate a threat of violence, a true threat does not require that the speaker “prepar[e] a

group for violent action and steel[] it to such action.” Brandenburg, 395 U.S. at 447–48 (quoting

Noto v. United States, 367 U.S. 290, 297–98 (1961)). The absence of group advocacy, with its

often-political character, justifies the lower mens rea in the true-threats context, see Counterman,

600 U.S. at 81–82, even though true threats can arise from political disputes that test the

boundaries of protected “political hyperbole,” Watts v. United States, 394 U.S. 705, 708 (1969)

(per curiam).

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 10

Hess’s facial challenge fails because Michigan’s terrorist-threat statute criminalizes true

threats, not incitement. However much some speech might straddle these categories, Michigan

courts have never interpreted § 750.543m(1)(a) as anything other than a true-threats statute. See

People v. Osantowski, 736 N.W.2d 289, 302–04 (Mich. Ct. App. 2007), rev’d on other grounds,

748 N.W.2d 799 (Mich. 2008); Kvasnicka III, 2025 WL 2045006, at *4 (collecting cases). This

dooms Hess’s claim that the statute is facially unconstitutional under Brandenburg, because the

statute’s “lawful sweep” only encompasses circumstances that do not require prosecutors to

prove imminent lawlessness and specific intent. Free Speech Coal., 606 U.S. at 481 n.7; see

Speet v. Schuette, 726 F.3d 867, 871–72 (6th Cir. 2013). Although the statute would require

prosecutors to prove that Hess made his statement with the intent to “affect the conduct of

government or a unit of government through intimidation or coercion,” Mich. Comp. Laws

§ 750.543b(a)(iii), that element supports a true-threat theory of liability. After all,

“[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat,

where a speaker directs a threat to a person or group of persons with the intent of placing the

victim in fear of bodily harm or death.” Black, 538 U.S. at 360. The district court correctly

found Hess unlikely to succeed on his facial Brandenburg argument.

We agree with Hess, however, that he will likely succeed on his alternative claim that he

did not express a true threat by saying “hang Joe for treason” in a “normal conversational tone”

made outside of Rozell’s presence, in what Hess believed was a private remark to Giobachi. R.

12-2, PageID 174. Before explaining that conclusion, we pause to address our authority to

decide this question.

McDonald emphasizes that juries, not judges, typically decide whether speech constitutes

a true threat. See, e.g., United States v. Howard, 947 F.3d 936, 947–49 (6th Cir. 2020); Thames

v. City of Westland, 796 F. App’x 251, 262 (6th Cir. 2019); Osantowski, 736 N.W.2d at 302. But

as in any setting, courts retain the power to remove a true-threat question from the jury’s

consideration, or override its verdict, if the evidence shows that the speech was protected as a

matter of law. Watts, 394 U.S. at 706, 708 (reversing a draft-eligible protester’s conviction for

his statement, made on the grounds of the Washington Monument, that “[i]f they ever make me

carry a rifle the first man I want to get in my sights is L.B.J.”). And the potential empaneling of

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 11

a jury, in either Hess’s federal civil case or in a revived state prosecution, does not prevent us

from assessing Hess’s likelihood of success on the merits based on the evidence available now—

even if the jury might reach a contrary verdict. Compare, e.g., ACT, Inc. v. Worldwide

Interactive Network, Inc., 46 F.4th 489, 499–503 (6th Cir. 2022) (finding the plaintiff likely to

succeed on the merits of its copyright-infringement claim) with Jury Verdict, ACT, Inc., No.

3:18-cv-00186 (E. D. Tenn. Sep. 9, 2022), Dkt. No. 718 (subsequently finding for the

defendant).

Returning to Hess’s speech, this case implicates the “profound national commitment” to

public debate that “may well include vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials.” Watts, 394 U.S. at 708 (quoting New York Times

Co. v. Sullivan, 376 U.S. 254, 270 (1964)). But just as the First Amendment permits a wide

range of “political hyperbole,” ibid., it also “protects individuals from the fear of violence and

from the disruption that fear engenders,” as well as “from the possibility that the threatened

violence will occur,” Black, 538 U.S. at 360 (citation modified).

A true threat is “a serious expression of an intent to commit an act of unlawful violence

to a particular individual or group of individuals.” Id. at 359. “The speaker need not actually

intend to carry out the threat.” Id. at 359–60. Rather, whether a statement rises to a true threat

depends on its “objective content” and what it conveys to the recipient. Counterman, 600 U.S. at

72–74; see also Elonis v. United States, 575 U.S. 723, 733 (2015). The speaker must make the

statement recklessly, “mean[ing] that a speaker is aware ‘that others could regard his statements

as’ threatening violence and ‘delivers them anyway.’” Counterman, 600 U.S. at 79 (quoting

Elonis, 575 U.S. at 746 (Alito, J., concurring in part and dissenting in part)).

Many factors inform whether a statement counts as a true threat. The statement’s

context, express or conditional nature, and the listeners’ reactions matter. See Watts, 394 U.S. at

708; Howard, 947 F.3d at 947–48 (affirming a defendant’s conviction for leaving a threatening

voicemail to a former government official because the statement, “‘I’m going to kill you. I am

going to murder you[,]’ . . . could not have been any clearer in [its] threat”). Although the

“listener’s subjective fear alone is not enough to turn an innocuous statement into a true threat,”

a statement is more likely to count as a true threat if the listener is “alarmed enough” to

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 12

immediately alert authorities. Thames, 796 F. App’x at 262 (emphasis removed). Other

variables include the statement’s specificity, audience (intended or otherwise), location, and

tone, in addition to any history of prior “conflict” between the speaker and the statement’s target.

See ibid.; United States v. Censke, 449 F. App’x 456, 467 (6th Cir. 2011). The target of the

speech need not hear it first-hand for the statement to count as a true threat, United States v.

Houston, 683 F. App’x 434, 438–39 (6th Cir. 2017), but distance between the speaker and

recipient may tend to diminish a statement’s threatening nature, see Watts, 394 U.S. at 705–06.

Hess’s “hang Joe for treason” statement likely did not constitute a true threat. He spoke

in a highly charged political atmosphere, which heightens the need to distinguish between true

threats and mere hyperbole. See id. at 708. His invocation of an archaic form of punishment

rather than a common, modern device suggests the latter. See Thames, 796 F. App’x at 262

(distinguishing between someone who threatens with “bombs” rather than “brimstone”).

Although not dispositive, Rozell never heard the threat directly. By removing himself to the

lobby, speaking in a “normal conversational tone,” and directing his comment only to Giobachi,

Hess lowered the statement’s temperature and the likelihood that it would reach Rozell, directly

or secondhand. R. 12-2, PageID 174; see Thames, 796 F. App’x at 262. By removing himself

from direct contact with Rozell and other recount officials, Hess likely did not consciously

disregard a substantial and unjustifiable risk that his statement would be viewed as endangering

Rozell. See Counterman, 600 U.S. at 79.

Additionally, neither of the individuals who directly heard Hess’s comment seemed

especially concerned. See Thames, 796 F. App’x at 262. Giobachi replied, “[t]hat’s too much,”

but took no action. R. 12-2, PageID 176. Howard, the secretary, did relay the comment to

officers, but not immediately, and she reported only because she took offense (she did not “take

kindly to that kind of behavior or language”), not because she feared violence. Id. at PageID

178. The officers did not perceive a threat either; after interviewing Hess, they allowed him to

return to the recount room and address Rozell during public comment. And Rozell himself never

felt threatened by anything Hess said to him directly, either during the 2022 or 2023 recounts.

To be sure, some facts cut against Hess. None do so forcefully, however. Rozell and

Hess had a history of conflict, see Censke, 449 F. App’x at 467, but their interactions always

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 13

resolved peacefully and Rozell never sought to eject Hess from official proceedings. Rozell also

testified that he felt in “shock” and requested police protection upon later learning of Hess’s

comment. Yet, even though an “alarmed” and “sincere” reaction is “meaningful,” it cannot

suffice “to turn an innocuous statement into a true threat.” Thames, 796 F. App’x at 262

(emphasis removed). And, although Hess chose to speak in a courthouse lobby, a sensitive place

where Rozell, other officials, or the public could have overheard his speech, Hess apparently

intended to address Giobachi privately. Thus, Hess has a strong case, on balance, that his

comments did not constitute a true threat.

Contrary to the district court, we find that Hess’s likelihood of success on the merits of

his as-applied true-threat argument is far better than “neutral.” R. 36, PageID 893. Because

most listeners would likely consider Hess’s comment hyperbole rather than “a serious expression

of an intent to commit an act of unlawful violence,” Black, 538 U.S. at 359, Hess is likely to

succeed on the merits of his claim that he engaged in protected speech.

B

Hess must also demonstrate that he would likely incur irreparable harm, an essential

prerequisite for obtaining preliminary injunctive relief. EOG Res., Inc. v. Lucky Land Mgmt.,

LLC, 134 F.4th 868, 883 (6th Cir. 2025). He claims that he would suffer irreparable harm from

the threatened prosecution based on, in his view, protected speech. But while 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. Perhaps the threat of prosecution based on

past speech could risk irreparable harm in some contexts, but not so here, because Hess can avail

himself of expeditious state-court procedures to litigate his First Amendment defense against a

good-faith prosecution.

Generally, injunctive relief is available only when the threat of enforcement chills future

speech. See Bays v. City of Fairborn, 668 F.3d 814, 818, 825 (6th Cir. 2012) (granting

preliminary injunction to plaintiffs who challenged an anti-pamphleting policy at a local festival

rather than forcing plaintiffs to challenge the policy by pamphleting and risking arrest). A mere

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 14

fear of enforcement based on past speech does not risk causing irreparable harm to the speaker’s

First Amendment rights because it does not impair his future conduct. Fischer, 78 F.4th at 868–

69 (denying a preliminary injunction to former political candidates who failed to show an

“immediate” risk of chill but rather sought to enjoin threatened state investigation into speech

that they made during a prior election (citation omitted)). This distinction between future and

past speech in the preliminary-injunction context comports with the notion that even a minimal

infringement of First Amendment freedoms constitutes irreparable harm. Defending Educ. v.

Olentangy Loc. Sch. Dist. Bd. of Educ., 158 F.4th 732, 760 (6th Cir. 2025) (en banc). When the

government chills speech ex ante, it deprives the speaker of the opportunity to timely express his

political views and deprives the community of the opportunity to timely consider his perspective.

See Elrod v. Burns, 427 U.S. 347, 373–74 & n.29 (1976) (plurality opinion). When the

government attempts to punish speech ex post, however, the speaker has still expressed himself,

the community has still received his wisdom, and the legal process can compensate him for any

unlawful enforcement. Fischer, 78 F.4th at 869 (explaining that if a court ultimately “finds that

the past speech was protected, then the appropriate remedy is damages, not an injunction”); cf.

Blackwell v. Nocerini, 123 F.4th 479, 488–89, 492 (6th Cir. 2024) (affirming the denial of

qualified immunity to city officials who allegedly “induced” the prosecution of a plaintiff for

charges that the plaintiff alleged reflected retaliation against his political speech).

Hess fears punishment solely for his past speech. The “only speech threatened by the

[state’s] proceedings [here, ‘hang Joe for treason’] has already occurred.” Fischer, 78 F.4th at

869. So the threat of prosecution for past speech has not impaired his “ability to speak ‘at the

time relief was sought.’” Id. at 868–69 (quoting Elrod, 427 U.S. at 373). In other words, Hess

need not choose “between the Scylla of intentionally flouting state law and the Charybdis of

forgoing what he believes to be constitutionally protected activity in order to avoid becoming

enmeshed in a criminal proceeding.” Steffel v. Thompson, 415 U.S. 452, 462 (1974).

Indeed, Hess has failed to identify speech that he wishes to make in the future but for the

threat of prosecution of that future speech. He offers only a generalized desire to continue

criticizing perceived election irregularities in the future, leaving us to speculate about what he

might say and how the terrorist-threat statute might proscribe it. Hess hypothesizes far more

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 15

uncertain downstream effects than those confronting pamphleteers who know exactly where they

want to canvass and exactly how an ordinance forbids their plans. See id. at 455–56; Bays, 668

F.3d at 818. True, prosecution for his remarks at the 2023 recount might trigger pretrial

restrictions against contacting Rozell, as the state court once imposed. Hess, however, does not

clearly raise that argument in his briefs, let alone suggest that he otherwise would contact Rozell

in the future. See Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624–25 (6th Cir. 2013). Nor does that

tailored restraint against contacting an alleged victim likely differ from the type of restriction

inherent in any prosecution. See Younger, 401 U.S. at 46. Should the state trial court impose

more restrictive conditions on his speech, or if Hess musters a more concrete example of how the

terrorist-threat statute deters his future speech, he “can renew [his] request for preliminary relief

then.” Fischer, 78 F.4th at 868.

Because Hess cannot identify a risk of irreparable harm to his ability to speak

prospectively, he instead invokes “the trials and tribulations” that a felony charge inflicts “well

before a jury is empaneled.” Appellant Br. 40. But even though we assess this case “without

regard” to Younger abstention, the Supreme Court has nonetheless stated that any attempt to

enjoin state criminal proceedings “implicates the concerns for federalism which lie at the heart of

Younger.” Doran, 422 U.S. at 931. For that reason, “the cost, anxiety, and inconvenience of

having to defend against a single criminal prosecution alone do not constitute ‘irreparable injury’

in the ‘special legal sense of that term.’” Kugler v. Helfant, 421 U.S. 117, 124 (1975) (quoting

Younger, 401 U.S. at 46). This general rule permits at least three exceptions—including when

the criminal forum would provide inadequate procedures to litigate constitutional defenses, when

the prosecution acts in bad faith, or when the prosecution appears flagrantly unconstitutional—

but none applies here. See Trainor v. Hernandez, 431 U.S. 434, 442–43 & n.7 (1977)

(explaining that these circumstances can justify injunctive relief even in a context when a federal

court should ordinarily abstain).

First, Michigan courts “provide[] the accused a fair and sufficient opportunity for

vindication of federal constitutional rights.” Kugler, 421 U.S. at 124. They have demonstrated

sensitivity to the Supreme Court’s true-threat precedents and defendants’ First Amendment rights

when interpreting § 750.543m(1)(a). See, e.g., People v. Burkman, 15 N.W.3d 216, 333 (Mich.

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 16

2024) (holding that defendants’ comments were not true threats); Kvasnicka III, 2025 WL

2045006, at *6 (construing § 750.543m(1)(a) in light of Counterman to imply a mens rea of

recklessness); People v. Johnson, 986 N.W.2d 672, 679–80 (Mich. Ct. App. 2022) (remanding

for a new trial where the trial court gave a jury instruction that “lack[ed] language necessary to

avoid infringement of the First Amendment”). They have even granted expedited appellate

review to resolve First Amendment defenses early in true-threat cases. See, e.g., People v.

Gerhard, 976 N.W.2d 907, 909 (Mich. Ct. App. 2021) (accepting interlocutory appeal of a denial

of the defendant’s motion to quash a § 750.543m(1)(a) charge). The Michigan Supreme Court

could hold § 750.543m(1)(a) facially unconstitutional. See Kvasnicka IV, 28 N.W.3d at 710

(ordering oral argument on that issue). Hess will have ample opportunity to litigate a First

Amendment defense long before ever reaching a jury.

Second, Hess has failed to make the “exceedingly rare” showing of prosecutorial bad

faith. Tindall v. Wayne Cnty. Friend of Ct., 269 F.3d 533, 539 (6th Cir. 2001). Mustering an

argument that he did not include in his preliminary-injunction motion below (but that he did

present in his since-dismissed Equal Protection Clause claim), Hess decries what he perceives as

inconsistent enforcement against “rough and tumble” speech. Reply Br. 14–17. This selective-

prosecution argument alleges that McDonald (an elected Democrat) has refused to enforce the

terrorist-threat statute against her likeminded fellow citizens. It requires Hess to prove selective

targeting, discriminatory purpose, and discriminatory effect. Rieves v. Town of Smyrna, 959 F.3d

678, 700 (6th Cir. 2020). The first element asks whether “similarly situated organizations and

individuals, of a different political viewpoint, have not been subject to the same alleged

treatment by Defendants.” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379

(6th Cir. 2011). The second element assesses the prosecution’s motives, and the third considers

whether the selective targeting has produced a discriminatory effect on the defendant’s

“identifiable group.” See Rieves, 959 F.3d at 700 (quoting Stemler v. City of Florence, 126 F.3d

856, 873 (6th Cir. 1997)).

Even assuming that we can consider this delayed theory premised on a dismissed claim, it

fails. Hess offered two comparator groups: social-media posts from the Lenawee County

Democratic Party calling President Donald Trump a “traitor who deserves the full measure of

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 17

punishment as outlined in the Constitution,” and protestors displaying signs accusing the

president of being a “traitor” and reading “86 47.” Reply Br. 15–16; R. 43, PageID 944–45.

Dismissing Hess’s Equal Protection claim, the district court found neither group similarly

situated, terminating the selective-prosecution analysis at the first step. R. 43, PageID 944–45.

The distinction between Hess and the social-media posters was certainly appropriate because

Michigan law more clearly authorizes venue in Oakland County for Hess’s within-jurisdiction

statement than for the out-of-county posts. See People v. McBurrows, 934 N.W.2d 748, 751–53

(Mich. 2019). The distinction between Hess and the protesters may present a closer call, but

even assuming that they are similarly situated, Hess has offered no evidence suggesting that

McDonald acted with discriminatory purpose or that Hess’s own political group (which he makes

no effort to define) has suffered discriminatory effects.

Third, we cannot categorically exclude the possibility that the law and facts will

ultimately support McDonald’s true-threats theory. The ongoing Kvasnicka litigation prevents us

from declaring the terrorist-threat statute “flagrantly and patently” unconstitutional such that we

must rescue Hess from prosecution. Younger, 401 U.S. at 53–54 (quoting Watson v. Buck, 313

U.S. 387, 402 (1941)). The statute’s unsettled construction, combined with a factual record that

sufficed for the earlier state court to find probable cause in Hess’s case, indicates that the state

does not utterly lack “a reasonable expectation of obtaining a valid conviction” despite our

skepticism. Kugler, 421 U.S. at 126 n.6.

An infringement upon an individual’s right to speak in the future is irreparable harm;

good-faith enforcement against past speech, even if protected, is not. Fischer, 78 F.4th at 868–

69. Hess has not pointed to any speech that he wishes to express but for § 750.543m(1)(a)’s

chilling effect. Because Hess fears only the ordinary inconveniences of defending a single, non-

bad-faith prosecution based on a prior statement, the district court did not abuse its discretion in

denying the requested relief. “The imminence of such a prosecution even though alleged to be

unauthorized and hence unlawful is not alone ground for relief in equity.” Beal v. Mo. Pac. R.R.

Corp., 312 U.S. 45, 49 (1941).

No. 25-1784 Hess v. Oakland Cnty., Mich. Page 18

III

We need not consider the remaining Winter factors because Hess has failed to

demonstrate a likelihood of irreparable harm, a “dispositive” prerequisite for obtaining

preliminary injunctive relief. D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 327 (6th Cir. 2019).

With confidence in the capacity of Michigan courts to justly resolve Hess’s First Amendment

defenses, if necessary, we AFFIRM the district court’s denial of the requested preliminary

injunction.