Recently in First Amendment Category

December 16, 2011

Over-posting To Twitter Is Not A Crime

Longtime readers will recall the Twitter-stalking case. I've written about it here. The conspirators Volokh have written about it here. There's also been coverage in PC World, and the New York Times.

twitterybirds.jpgIn essence, the government indicted William Cassidy for sending a lot of tweets on Twitter. This was charged as a violation of a federal anti-stalking law. His defense lawyers argued that this was protected by the First Amendment.

Yesterday, Judge Roger Titus of the United States District Court for the District of Maryland, issued an opinion dismissing the indictment.

Most interestingly, Judge Titus explains both blogs and Twitter from the point of view of a colonist at the time of the drafting of the Bill of Rights. He explains that,

Because this case involves First Amendment issues, terms that were in use by citizens when the Bill of Rights was drafted may help in understanding the legal context of Blogs and Twitter. Suppose that a Colonist erects a bulletin board in the front yard of his home to post announcements that might be of interest to others and other Colonists do the same. A Blog is like a bulletin board, except that it is erected in cyberspace rather than in one's front yard. If one Colonist wants to see what is on another's bulletin board, he would need to walk over to his neighbor's yard and look at what is posted, or hire someone else to do so. Now, one can inspect a neighbor's Blog by simply turning on a computer.

Moving on to explain Twitter, Judge Titus says that,

Twitter allows the bulletin board system to function so that what is posted on Colonist No. 1's bulletin board is automatically posted on Colonist No. 2's bulletin board for Colonist No. 2 to see. The automatic postings from one Colonist to another can be turned on or off by the owners of the bulletin boards, but there is no mandatory aspect of postings on one Colonist's bulletin board showing up on the other's. It is entirely up to the two Colonists whether their bulletin boards will be interconnected in such a manner.

Finishing his description of the facts (and foreshadowing the legal analysis that will follow) Judge Titus writes that,

Blogs are of unlimited size in terms of content, but must be accessed one at a time. Twitter is limited to 140 characters, but allows unlimited voluntary connectivity with other users. That connectivity, however, is subject to change at the whim of a user who has the ability to "turn off" ("block" or "unfollow") communications from another user. Whether couched in terms of the Internet or Colonial bulletin boards, there is one consistent aspect of both eras. One does not have to walk over and look at another person's bulletin board; nor does one Blog or Twitter user have to see what is posted on another person's Blog or Twitter account. This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed at another person, and that difference, as will be seen, is fundamental to the First Amendment analysis in this case.

Judge Titus has provided a useful framework for thinking about blogging and twitter in the context of the First Amendment. He only lacks an explanation of why anyone would spend time on Twitter in the first place - though perhaps Judge Titus can be forgiven for not taking that challenge (and my own lackluster use of Twitter may suggest that I think that question is unanswerable).

This is a strong win for the Federal Public Defender's office in Maryland - congratulations to those very talented lawyers.

Also, the New York Times wrote about the Titus opinion. That article is here. Volokh also has a post on the opinion here.

September 30, 2011

The Ninth Circuit Holds That Once The Government Is Done Investigating You, You Get To See The Warrant That Let Them Into Your House

If you have had a search warrant executed at your house, you're likely to want to know why. If you committed a crime, perhaps it's obvious why. If not, you'd likely want to see why the government thought you were up to something suspicious.

Christopher Kortlander was in exactly that situation. In 2005 and 2008 the federal government got a warrant and searched his house. He was under investigation, as the Ninth Circuit put it, for unlawfully attempting to sell migratory bird parts and for fraudulently misrepresenting the provenance of historical artifacts for sale."

Ultimately, the government declined to go forward with charges.

Mr. Kortlander wanted to see the search warrant. Federal Rule of Criminal Procedure 41(i) requires that search warrants, and related documents, be kept in the clerk's office of the district court that they are issued from.

So, Mr. Kortlander asked that district court for copies of those documents.

The United States government opposed that request. It argued that the documents contained information that was collected by the grand jury and, therefore, was secret.

Mr. Kortlander pointed out that he had already seen the information, with his lawyer, during the investigation.

The government then removed it's objection and said, instead, that it was ok for Mr. Kortlander to see the documents, but only if Mr. Kortlander agrees to "limit dissemination of the material to Kortlander's personal review and/or for inclusion in any future court filings." In support of this restriction, the government said that "concerns have been raised that information collected by Kortlander may be posted on web sites."

You have to admire the use of the passive voice.

The district court, exercising its independent control over the documents that were in its clerk's office, adopted the government's suggestion without making any findings to support a restriction of Mr. Kortlander's ability to distribute the documents.

Mr. Kortlander appealed, and the Ninth Circuit reversed in United States v. Kortlander.

The court of appeals explained that there are two rights of access to court documents - a right under the common law and a First Amendment right. The appellate court held that the common law right required disclosure without restriction. It did not reach the First Amendment argument.

The Ninth Circuit started by observing that

Whether the common law right of access applies to warrant materials after an investigation has ended is a question of first impression in this circuit. We have held that the common law right of access does not apply to warrant materials "during the pre-indictment stage of an ongoing criminal investigation." Id. at 1221. But we expressly reserved whether the common law right of access applies to warrant materials after "an investigation has been terminated." Id. We answer that question today, and hold that, as the government concedes, the common law right of access applies under these circumstances. In doing so, we join a number of courts that have reached the same conclusion. See, e.g., In re EyeCare Physicians of Am., 100 F.3d 514, 517 (7th Cir. 1996); In re Newsday, Inc., 895 F.2d 74, 79 (2d Cir. 1990); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 62 (4th Cir. 1989); United States v. Wells Fargo Bank Account Number 7986104185, 643 F. Supp. 2d 577, 583-84 (S.D.N.Y. 2009); In re N.Y. Times Co., 585 F. Supp. 2d 83, 92 (D.D.C. 2008); Commonwealth v.Fenstermaker, 530 A.2d 414, 417-19 (Pa. 1987); see also In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 575-76 (8th Cir. 1988) (Bowman, J., concurring).

As the Ninth Circuit explained, quoting, at length, from the Fourth Circuit,* when the government is still investigating, there is an interest in not disclosing warrant documents.

Once the investigation is over, that interest is gone, and the public's interest in knowing how it's government requires that the warrant documents be released to the public.

As the Ninth Circuit said, quoting the Eighth Circuit,

public access to documents filed in support of search warrants is important to the public's understanding of the function and operation of the judicial process and the criminal justice system and may operate as a curb on prosecutorial or judicial misconduct.

The court of appeals also ordered the government to pay Mr. Kortlander's costs in the appeal.

* !

September 6, 2011

More Valor Stolen From The Stolen Valor Act

The Stolen Valor Act, at 18 U.S.C. 704, makes it a federal crime to lie about having certain military honors.

The Ninth Circuit, in an opinion that can almost never be quoted enough, held that the Stolen Valor Act is unconstitutional. Judge Kozinksi writes,

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy ("No, I don't live around here"); to avoid hurt feelings ("Friday is my study night"); to make others feel better ("Gee you've gotten skinny"); to avoid recriminations ("I only lost $10 at poker"); to prevent grief ("The doc says you're getting better"); to maintain domestic tranquility ("She's just a friend"); to avoid social stigma ("I just haven't met the right woman"); for career advancement ("I'm sooo lucky to have a smart boss like you"); to avoid being lonely ("I love opera"); to eliminate a rival ("He has a boyfriend"); to achieve an objective ("But I love you so much"); to defeat an objective ("I'm allergic to latex"); to make an exit ("It's not you, it's me"); to delay the inevitable ("The check is in the mail"); to communicate displeasure ("There's nothing wrong"); to get someone off your back ("I'll call you about lunch"); to escape a nudnik ("My mother's on the other line"); to namedrop ("We go way back"); to set up a surprise party ("I need help moving the piano"); to buy time ("I'm on my way"); to keep up appearances ("We're not talking divorce"); to avoid taking out the trash ("My back hurts"); to duck an obligation ("I've got a headache"); to maintain a public image ("I go to church every Sunday"); to make a point ("Ich bin ein Berliner"); to save face ("I had too much to drink"); to humor ("Correct as usual, King Friday"); to avoid embarrassment ("That wasn't me"); to curry favor ("I've read all your books"); to get a clerkship ("You're the greatest living jurist"); to save a dollar ("I gave at the office"); or to maintain innocence ("There are eight tiny reindeer on the rooftop").

The Stolen Valor Act has recently been found unconstitutional by another jurist, Magistrate Judge DiGirolamo on the United States District Court for the District of Maryland. Here's the opinion. (for more coverage, see the Washington Examiner)

If you accept the premise set out by Garrett Epps in the Atlantic that the debate over the Stolen Valor Act is really just a debate about whether lies have First Amendment protection, then Judge DiGirolamo comes squarely down on a reading of a more expansive First Amendment. He writes,

First Amendment protection does not hinge on the truth of falsity of the matter stated. While some false speech may be proscribed, the Supreme Court has made it clear that not all of it is.
August 31, 2011

Protesters Have No Reason To Picket The Ninth Circuit (Though If They Did, They'd Be Welcome To Do It)

The Ninth Circuit is a hotbed of defendant-friendly First Amendment jurisprudence in criminal cases.

The Ninth Circuit recently held that racially-motivated threats on an internet message board don't violate the law. And, recently, in United States v. Parker, the Ninth Circuit vacated the conviction of a protester at a military base.

Perhaps the defense lawyers in the Twitter harassment case should try to transfer venue.

But, to United States v. Parker.

Mr. Parker prefers to spend time protesting at the Vandenberg Air Force Base in California. When he's protesting there, it appears that he sets up shop on Ocean Avenue, a public road that crosses the base.

Not once, not twice, but thrice he was asked to move along. He was directed to the "designated protest area" outside the base's gate.* He was barred from protesting on Ocean Avenue by the military police. Yet he returned.

Finally, he was charged with violating 18 U.S.C. 1382, which says:

Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or

Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed there from or ordered not to reenter by any officer or person in command or charge thereof--

Shall be fined under this title or imprisoned not more than six months, or both.

He appealed, saying that he was on a public road. The argument is that you can't be prosecuted for entering a military base if it's also a public road, because the military doesn't have the exclusive right to kick people out of public roads.

In a way, it's the governmental inverse of the rule that one roommate can't consent to let the police search another roommate's stuff.

And the Ninth Circuit, in a panel which included D.C. Circuit Judge Brett Kavanaugh, reversed.

* One imagines that it was "outside the gate" in the sense that it was in Maine.

July 19, 2011

A Divided Ninth Circuit Panel Reverses a Conviction Based on a Racially-Motivated Threat on Barack Obama

Walter Bagdasarian really did not want Barack Obama to be President. As the general election drew near, and Obama's election seemed more certain, Mr. Bagdasarian decided to take action. Instead of volunteering for McCain, or sending money to the Republican National Committee, he logged on to a Yahoo! Finance message board and posted two comments responding to the state of the election.

The comments including disparaging remarks about Mr. Obama and Mr. Obama's race, and noted that Mr. Obama "will have a 50 cal in the head soon." Mr. Bagdasarian also included a call to "shoot" Mr. Obama. He challenged Mr. Obama's fitness for office by virtue of status as an African American, claiming that no African American has ever done anything in history, except open a "sambos" restaurant. (Mr. Bagdasarian did not seem to realize that Sambos was actually owned by two white men, though that may not undermine his larger, and repugnant, point.). Perhaps it goes without saying that Mr. Bagdasarian did not use the term "African American."

Mr. Bagdasarian's comments did not alter the course of the election. They did, however, cause a participant on the message board to contact the Secret Service. Mr. Bagdasarian was interviewed by the Secret Service. His house was searched and a fifty caliber rifle was found. His computer was searched and an email was found that described a method for blowing up the President's car, as well as Mr. Bagdasarian's desire to see that car blown up. As the Ninth Circuit put it, "[t]hese email messages would appear to confirm the malevolent nature of the previous statements as well as Bagdasarian's own malignant nature."

Mr. Bagdasarian was charged with two counts of violating 18 U.S.C. section 879(a)(3), which criminalizes threatening to kill or harm "a major candidate for the office of President of the United States."

(And, yes, gentle reader, that's really the language - does section 879(a)(3) prohibit threatening Ron Paul? Or Ralph Nader? Part of me would love to challenge the constitutionality of the "major candidate" part of that statute. Still, Obama unarguably counted after at least the Iowa caucuses.)

Mr. Bagdasarian lost at trial on stipulated facts. Which is to say, he agreed with everything that happened, he just didn't think he had committed a crime. A federal district court judge thought he had. The Ninth Circuit, however, held that he hadn't in their published opinion in United States v. Bagdasarian.

Judge Reinhardt's majority opinion opens with a walk through the ways American presidential candidates have been maligned through our history. If you're looking for a reason to be depressed about American democracy, this is a decent place to start.

The Ninth Circuit clarified that for a criminal threat statute to apply to pure speech, that speech has to constitute a "true threat." The question, then, is whether two things are true: (1) whether Bagdasarian subjectively intended to cause bodily harm to the President; and (2) whether a person looking at Mr. Bagdasarian's actions and statements would think that he intended to cause bodily harm.

The court found that Mr. Bagdasarian's directive to shoot Mr. Obama is not an expression of an intent to cause harm to him; it "is instead an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President."

Mr. Bagdasarian had, of course, a 50 caliber rifle in his possession when he made the statement that Mr. Obama should be shot with a .50 caliber rifle. The court discounted this, because no one in the chat room knew that he had that rifle.

The court concluded, therefore, that Mr. Bagdasarain's comments, loathsome though they are, were the kind of rough and tumble political speech that our constitution allows.

Judge Wardlaw dissented. She agreed with the statement of law, but found that this was a true threat, and that Mr. Bagdasarian actually threatened Barack Obama with bodily harm both subjectively and objectively.

The interesting thing, I think, is the way her dissent reads. She has a lengthy statement of facts and an independent statement of the law that, in many ways, repeats the discussion in the majority opinion.

Was this is a majority opinion that changed when she lost a vote? The third member of the panel was Chief Judge Kozinski, who, himself, has an interesting relationship with the First Amendment. So, maybe.

I, for one, am really looking forward to seeing how this gets resolved en banc.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.