Date: May 6, 2026

Hess v. Oakland County: No Preliminary Injunction to Block a Threatened State Prosecution for Past Speech Absent Concrete Future Chill or Inadequate State Remedies

I. Introduction

In Andrew Hess v. Oakland Cnty., Mich. (6th Cir. May 5, 2026), the Sixth Circuit confronted a high-friction intersection of First Amendment “true threat” doctrine and the extraordinary nature of federal equitable relief against a threatened state criminal prosecution.

The dispute arose from a December 2023 election recount at the Oakland County courthouse. Plaintiff-Appellant Andrew Hess, an observer, accused Oakland County’s Director of Elections Joseph Rozell of wrongdoing. In the courthouse lobby—outside Rozell’s presence— Hess allegedly said to another citizen, in a “normal conversational tone,” “hang Joe for treason.” Months later, Oakland County Prosecutor Karen McDonald charged Hess under Michigan’s terrorist-threat statute, Mich. Comp. Laws § 750.543m(1)(a). The charge was dismissed after a Michigan appellate decision held the statute unconstitutional, but the Michigan Supreme Court later revived the statutory debate in the People v. Kvasnicka line of cases, creating a renewed possibility that Hess could again face prosecution.

Hess then sought a federal preliminary injunction to prevent any renewed state prosecution, contending (i) the statute is facially invalid under incitement principles and (ii) the statement was protected speech—not a “true threat.” The district court denied preliminary relief. The Sixth Circuit affirmed, holding that even though Hess is likely correct that his statement was not a true threat, he failed to show irreparable harm justifying the “dramatic remedy” of enjoining a threatened prosecution by a separate sovereign.

II. Summary of the Opinion

Facial challenge rejected (likely failure): The court held Hess’s Brandenburg v. Ohio theory is unlikely to succeed because Michigan’s terrorist-threat law operates as a true-threats statute, not an incitement statute.
As-applied true-threat claim favored (likely success): The panel concluded Hess is likely to prevail that “hang Joe for treason,” said in context and tone described in the record, was political hyperbole rather than a “serious expression” of intent to commit unlawful violence.
Preliminary injunction denied anyway: Because the threatened prosecution concerned past speech and Hess did not identify concrete chilled future speech—and because Michigan courts provide expeditious avenues to litigate First Amendment defenses—Hess failed to show irreparable harm.

III. Analysis

A. Precedents Cited

1. Preliminary-injunction standard and the special reluctance to enjoin prosecutions

Winter v. Nat. Res. Def. Council and Starbucks Corp. v. McKinney: The court applied the familiar four-factor test and emphasized the plaintiff’s burden to make a “clear showing” on each prerequisite, including the typically dispositive requirement of irreparable harm.
Douglas v. City of Jeannette and Kugler v. Helfant: The opinion relied on the tradition that equity does not “ordinarily restrain criminal prosecutions,” and that the “cost, anxiety, and inconvenience” of defending a prosecution is not irreparable injury “in the special legal sense.”
Younger v. Harris, Hicks v. Miranda, and Doran v. Salem Inn, Inc.: Even while concluding abstention was not required on these facts, the court used these cases to explain why federal injunctions that interfere with state criminal enforcement still trigger acute federalism concerns.
Sixth Circuit reinforcement: Fischer v. Thomas supplied the opinion’s central irreparable-harm framework (past speech vs. future chill), and Bays v. City of Fairborn illustrated the contrasting scenario where threatened enforcement chills planned future expression. The court also referenced Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ. and Elrod v. Burns to situate the “irreparable harm” concept in First Amendment doctrine.
Baseline equity restraint: Beal v. Mo. Pac. R.R. Corp. supported the proposition that even imminent, allegedly unlawful prosecution is not, without more, a ground for equitable relief.

2. Overbreadth/facial review and the incitement vs. true-threats distinction

Free Speech Coal., Inc. v. Paxton and United States v. Hansen: The panel invoked modern overbreadth doctrine: a law is facially invalid only if unconstitutional applications are “substantially disproportionate” to the statute’s lawful sweep.
Brandenburg v. Ohio and Noto v. United States: These incitement decisions define the narrow category of punishable advocacy: speech directed to producing imminent lawless action and likely to produce it. The court used them chiefly to reject Hess’s attempt to force a true-threats statute into the stricter Brandenburg framework.
Counterman v. Colorado, Virginia v. Black, Watts v. United States, and Elonis v. United States: These cases anchored the court’s true-threat analysis, including Counterman’s constitutional requirement that the state prove at least a recklessness mental state regarding the threatening character of the communication.
Sixth Circuit true-threat applications: United States v. Howard, Thames v. City of Westland, United States v. Censke, and United States v. Houston supplied contextual factors for evaluating threatening content, listener reaction, specificity, prior conflict, and whether the target must hear the statement directly.

3. Michigan authorities shaping the statutory and procedural backdrop

People v. Kvasnicka (Kvasnicka I), People v. Kvasnicka (Kvasnicka II), People v. Kvasnicka (Kvasnicka III), and People v. Kvasnicka (Kvasnicka IV): This sequence created the volatility that prompted Hess’s request for federal protection. The Sixth Circuit treated it as evidence that Michigan courts are actively and seriously calibrating § 750.543m(1)(a) to Counterman’s requirements (including debate over reading in a recklessness mens rea and the role of § 750.543z’s “presumptively protected” speech provision).
People v. Osantowski: Cited for the proposition that Michigan courts have long treated § 750.543m as a true-threats statute.
Procedural adequacy and expedited review: People v. Johnson (jury instructions and First Amendment limits) and People v. Gerhard (interlocutory review), plus People v. Burkman (finding no true threat on its facts), were used to show Michigan provides meaningful opportunities to litigate First Amendment defenses early and effectively.
Venue comparator issue (selective-prosecution argument): People v. McBurrows supported the district court’s view (recited approvingly) that certain out-of-county comparators were not similarly situated.

B. Legal Reasoning

1. Why the Brandenburg facial attack was unlikely to succeed

The panel reasoned that Hess’s framing mismatched the statute. Incitement doctrine under Brandenburg v. Ohio polices the line between advocacy and imminent lawless action. But § 750.543m(1)(a), as construed by Michigan courts, targets true threats—communications threatening violence to intimidate or coerce—rather than exhortations to third parties to act imminently. Because true threats may be punished without satisfying Brandenburg’s imminence/likelihood requirements, the court concluded Hess’s overbreadth claim could not show unconstitutional applications “substantially disproportionate” to lawful ones under Free Speech Coal., Inc. v. Paxton and United States v. Hansen.

2. Why Hess was likely to win the as-applied “true threat” claim

Applying Virginia v. Black (true threats are “serious expression[s]” of intent to commit unlawful violence) and Counterman v. Colorado (at least recklessness as to threatening character), the court evaluated the objective meaning of “hang Joe for treason” in context:

Political context: The remark occurred amid a heated election dispute, where Watts v. United States cautions against criminalizing “political hyperbole.”
Formulation: “Hang ... for treason” invoked an archaic punishment rather than an immediate plan or modern method, tending toward hyperbole (cf. Thames v. City of Westland).
Audience and distance: Hess did not direct the remark to Rozell; he spoke outside Rozell’s presence, in a “normal conversational tone,” to a private listener—reducing the likelihood he consciously disregarded the risk of it being viewed as a genuine threat.
Reactions and immediacy: The listener’s response (“That’s too much.”) did not trigger immediate reporting; the receptionist reported later and testified she did not perceive “imminent harm.” Police allowed Hess to return to the recount. These circumstances undercut the inference of a serious threat (see Thames v. City of Westland).
Prior conflict: Although there was prior friction, it had resolved peacefully, which softened the inference that the remark conveyed serious intent (cf. United States v. Censke).

The court emphasized that juries often decide true-threat questions, but appellate courts can still conclude, on a given record, that speech is protected as a matter of law (as in Watts v. United States), and can assess likely success at the preliminary-injunction stage notwithstanding the possibility of a contrary verdict.

3. Why irreparable harm was not shown (the decision’s operative rule)

The panel’s decisive move was to separate (a) enforcement threats that chill future speech from (b) threatened punishment for past speech. Relying heavily on Fischer v. Thomas, it held that Hess’s feared injury was principally the burdens of defending a felony case for a statement already made. That does not constitute irreparable harm warranting a federal injunction against a state prosecution, especially given:

No concrete future chill: Hess identified no specific planned future speech deterred by the statute; the court declined to treat a generalized desire to criticize election processes as enough to justify equitable intervention (contrasting Bays v. City of Fairborn and Steffel v. Thompson).
Adequate state-court process: Michigan courts provide “fair and sufficient” opportunities to litigate federal constitutional claims, and have shown attentiveness to true-threat doctrine (citing People v. Burkman, People v. Johnson, People v. Gerhard, and the active People v. Kvasnicka litigation).
No exception based on bad faith or patent unconstitutionality: The panel rejected an eleventh-hour selective-prosecution/bad-faith theory and observed that the unsettled and evolving construction of § 750.543m under Kvasnicka undermined any claim the statute was “flagrantly and patently” unconstitutional in the Younger v. Harris sense.

In effect, the opinion recognizes a practical remedial hierarchy: where the threatened harm is prosecution for past speech and state procedures are adequate, the primary federal remedy is not a prior restraint-like injunction but (if a constitutional violation is later established) damages and post hoc relief.

C. Impact

Higher bar for enjoining threatened state prosecutions based on past speech: Plaintiffs in the Sixth Circuit will have to do more than show probable First Amendment success; they must show a concrete, imminent injury to future expression or fit within narrow exceptions (bad faith, inadequate forum, or patent invalidity).
Clarified operational role of “irreparable harm” in First Amendment preliminary relief: The court did not retreat from the principle that First Amendment infringements are irreparable; it specified that, in this posture, irreparability is tied to lost opportunities for timely speech and public deliberation—not merely the burdens of defending a single prosecution.
Guidance for true-threat assessments in political settings: While not a final merits adjudication, the opinion provides a concrete template for evaluating whether charged rhetoric (“hang ... for treason”) is a serious threat or protected hyperbole, highlighting tone, audience, proximity to the target, and listener reactions.
Federalism-sensitive sequencing: The decision encourages litigants to press Counterman-compliant defenses in state court—especially where the state judiciary is actively shaping the statute— rather than seeking immediate federal injunctive intervention.

IV. Complex Concepts Simplified

Preliminary injunction: A temporary order entered early in a case to prevent harm before final judgment. It is “extraordinary” and requires a “clear showing” of likelihood of success, irreparable harm, favorable equities, and public interest.
True threat: Speech that seriously expresses an intent to commit unlawful violence against a person or group. Under Counterman v. Colorado, the government must show at least that the speaker was reckless about whether others would perceive the statement as a threat.
Incitement: Speech urging others to commit imminent lawless action and likely to produce it, under Brandenburg v. Ohio. It is harder to punish than true threats because it often overlaps with political advocacy.
Facial vs. as-applied challenge: A facial challenge argues a statute is unconstitutional in most or many of its applications (overbreadth). An as-applied challenge argues the statute is unconstitutional when applied to the plaintiff’s specific facts.
Irreparable harm (First Amendment context): Harm that cannot be undone later. The court treated suppression of future speech as paradigmatically irreparable, but treated the burdens of defending a single good-faith prosecution for past speech as ordinarily reparable through the legal process and, if warranted, damages.
Younger abstention (and why it still mattered here): A doctrine requiring federal courts, in many circumstances, to refrain from interfering with ongoing state proceedings. The Sixth Circuit held abstention did not apply procedurally, but it still considered Younger’s federalism concerns when assessing whether equity should restrain a threatened state prosecution.

V. Conclusion

Hess is a dual-message decision. Substantively, the Sixth Circuit signaled strong skepticism that “hang Joe for treason,” as said here, qualifies as a punishable true threat under Virginia v. Black and Counterman v. Colorado. Remedially, however, it underscored that showing a likely First Amendment violation is not enough to justify a preliminary injunction blocking a threatened state criminal prosecution when the alleged chill targets only past speech, the plaintiff cannot identify concrete chilled future speech, and the state system offers prompt and adequate avenues to adjudicate the constitutional defense.

The opinion thus establishes a pragmatic precedent in the Sixth Circuit: in the prosecution-for-past-speech posture, the irreparable-harm requirement does the principal work, functioning as a structural safeguard for federalism even where formal Younger v. Harris abstention does not apply.