Eugene Volokh's Blog, page 2742

Unprotected Solicitation of Crime or Protected Advocacy of Crime?

(Eugene Volokh)

Marty Lederman (Balkinization) blogs about an indictment that raises very important First Amendment issues. Count 1 charges defendant with urging terrorist activity — that's the solicitation vs. advocacy question. Count 2 charges defendant with linking to bombmaking instructions, with the intent that they be used for criminal purposes (an issue I discuss, among others, in my Crime-Facilitating Speech article). I read the indictment myself, and I think Marty's analysis is an excellent explanation of the contested questions. An excerpt:

Is there a constitutional right to make posts to the Internet encouraging terrorism? To link to a bombmaking manual in hopes that some reader will use it for unlawful purposes?

The Department of Justice yesterday announced an indictment raising both of these important Free Speech Clause questions.

A grand jury in the Eastern District of Virginia has indicted 22-year-old Emerson Winfield Begolly, of New Bethlehem, Pa. — a former Penn State student and son of a Penn State instructor — for "soliciting" acts of terrorism on the Internet and for linking to bombmaking instructions online. U.S. Attorney Neil MacBride explains that Begolly is alleged of "repeatedly using the Internet to promote violent jihad against Americans."

The indictment alleges two offenses: Count One alleges that Begolly repeatedly made posts to the Ansar al-Mujahidden Forum, an "Islamic extremist web forum used by its members to translate, promote and distribute jihadist propaganda," in which he "suggested" the use of explosives against targets such as police stations, post offices, synagogues, military facilities, train lines, bridges, cell phone towers and water plants, and implored his readers that "Allah commands us to terrorize the [average American]." (There are further examples to like effect in the indictment.) These posts are alleged to have been unlawful "solicitations" of arson, terrorism and other offenses, in violation of 18 U.S.C. 373(a).

Count Two alleges that Begolly posted a link to a document entitled "The Explosives Course," allegedly written by one of al Qaeda's former top chemical and biological weapons experts. "The Explosives Course" contains information on, inter alia, how to manufacture explosives. The indictment alleges that in providing the link to the Course, Begolly thereby "distributed" information on the use of explosives "with the intent that the information be used for, and in furtherance of," federal crimes of violence, in violation of 18 U.S.C. 842(p)(2)(A), which makes it unlawful to, inter alia, "distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence."

Each count raises important, unresolved First Amendment questions.

Advocacy/Solicitation

The activity described in Count One–publicly urging, or in U.S. Attorney MacBride's words, "promoting," unlawful conduct–does not at first glance appear to be different from the sort of advocacy of unlawful conduct that is entitled to substantial First Amendment protection under the Brandenburg line of cases. Under that doctrine, such advocacy can be penalized only if the jury finds that it was "directed to inciting or producing imminent lawless actions and is likely to incite or produce that action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). The Begolly indictment does not allege either an intent to incite imminent lawless action, or a likelihood that the speech would produce such imminent lawlessness. Assuming the government could not prove such Brandenburg intent and likelihood beyond a reasonable doubt, Count One would appear to be very vulnerable to a First Amendment challenge.

The indictment, however, denominates the speech as "solicitation" prohibited by section 373(a), rather than as "advocacy" or "promotion." Does this characterization change the First Amendment analysis? ...

Distribution of Bombmaking Information

As the 1997 DOJ Report further explained, the First Amendment generally protects the publication of publicly available information, even where there is a chance or a likelihood that one or more readers may put such information to dangerous, unlawful use. So why can the government punish Begolly for linking to the "Explosives Course"? The theory, which the Report elaborates upon at length in section VI-B-1, is that publication of such information loses its First Amendment protection if it is done with the specific intent that the information be used unlawfully, even where the speaker does not (as in the classic aiding-and-abetting case) convey the information to a particular individual who then goes on to commit a crime.

The statute under which Begolly has been indicted for his linking was drafted in reliance upon the DOJ Report analysis. It requires the jury to find, beyond a reasonable doubt, that Begolly intended the explosives information in question would be "used for, or in furtherance of, an activity that constitutes a Federal crime of violence." As the Report explains, "intent" in this context must mean "an actual, conscious purpose to bring about the specified result": constructive intent, i.e., intent inferred solely by virtue of the fact that criminal offenses were a foreseeable result of the distribution of bombmaking information, is constitutionally insufficient. If the evidence supports the facts alleged in the indictment, the government may be able to prove such even such specific intent on Begolly's part.

Which would tee up yet another important First Amendment question: Was the 1997 DOJ Report correct in concluding that such crime-facilitative intent is sufficient to remove the protection of the First Amendment? Eugene Volokh has argued that it shouldn't be — see 57 Stan. L. Rev. 1095, 1179–95 (2005) — primarily on the ground that juries might find such intent even where it does not exist, and therefore such an intent test has too broad a chilling effect, "tend[ing] to deter speakers who fear that they might be assumed to have bad intentions." Eugene acknowledges, however, that such an intent test has been approved not only by DOJ but also by "leading courts and commentators," including most prominently the U.S. Court of Appeals for the Fourth Circuit in Rice v. Paladin Enters., Inc., 128 F.3d 233, 243, 266 (4th Cir. 1997). The Begolly case may turn out to be an important test of this lingering question....

Read Marty's whole post for more.

Defendant's Looking at Playboy and Girls Gone Wild as Sentencing Factor

(Eugene Volokh)

In State v. Epling (Utah. Ct. App. July 21, 2001), defendant pleaded no contest to three charges of sexually abusing his stepson, and was sentenced to three consecutive 1-to-15-year prison terms. Here's one passage that struck me as particularly interesting:

Epling also objects to the trial court's expressed concern about his involvement with "pornography." According to Epling, because this conduct was not illegal, i.e., there was no allegation that he was involved with pornography involving children, it was protected by the First Amendment of the United States Constitution. [Footnote: The trial court's comments seem to be based upon the psychosexual report, which indicates that Epling self-reported viewing Playboy magazines and programs such as Girls Gone Wild.] Therefore, he contends that the trial court could not properly consider it as a factor supporting its decision to impose consecutive sentences. However, there is nothing that prevents a trial court from considering a defendant's legal activities in making a sentencing determination. See, e.g., State v. Alfatlawi, 2006 UT App 511, ¶ 51, 153 P.3d 804 (upholding a consecutive sentencing decision where the trial court determined that the defendant's bad attitude, as exhibited by the defendant's diatribe of threats and obscenities, weighed in favor of consecutive sentences); cf. State v. Montoya, 929 P.2d 356, 360 (Utah Ct.App.1996) (upholding consecutive sentences where the trial court relied on an assessment that the defendant was "pessimistic, apathetic, emotionally inhibited and controlled, maladaptive under stress, assaultive, resentful, hostile, and aggressive"). It was within the trial court's discretion to consider such evidence.

I wonder whether that's right. Indeed, a sentencer can often use evidence of a person's constitutionally protected speech and association during sentencing. But as Dawson v. Delaware (1992) holds, there are limits to that:

"[T]he sentencing authority has always been free to consider a wide range of relevant material." We have previously upheld the consideration, in a capital sentencing proceeding, of evidence of racial intolerance and subversive advocacy where such evidence was relevant to the issues involved. In Barclay v. Florida, 463 U. S. 939 (1983), for example, we held that a sentencing judge in a capital case might properly take into consideration "the elements of racial hatred" in Barclay's crime as well as "Barclay's desire to start a race war."

One year later, in United States v. Abel, 469 U. S. 45 (1984), we held that the Government could impeach a defense witness by showing that both the defendant and the witness were members of the Aryan Brotherhood, and that members were sworn to lie on behalf of each other. We held the evidence admissible to show bias, even assuming that membership in the organization was among the associational freedoms protected by the First Amendment. Though Abel did not involve a capital sentencing proceeding, its logic is perfectly applicable to such a proceeding. We therefore conclude that the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment....

[Yet] in this case, the receipt into evidence of the stipulation regarding [Dawson's] membership in the Aryan Brotherhood was constitutional error. Before the penalty hearing, the prosecution claimed that its expert witness would show that the Aryan Brotherhood is a white racist prison gang that is associated with drugs and violent escape attempts at prisons, and that advocates the murder of fellow inmates. If credible and otherwise admissible evidence to that effect had been presented, we would have a much different case. But, after reaching an agreement with Dawson, the prosecution limited its proof regarding the Aryan Brotherhood to the stipulation. The brief stipulation proved only that an Aryan Brotherhood prison gang originated in California in the 1960's, that it entertains white racist beliefs, and that a separate gang in the Delaware prison system calls itself the Aryan Brotherhood. We conclude that the narrowness of the stipulation left the Aryan Brotherhood evidence totally without relevance to Dawson's sentencing proceeding....

Even if the Delaware group to which Dawson allegedly belongs is racist, those beliefs, so far as we can determine, had no relevance to the sentencing proceeding in this case. For example, the Aryan Brotherhood evidence was not tied in any way to the murder of Dawson's victim. In Barclay, on the contrary, the evidence showed that the defendant's membership in the Black Liberation Army, and his consequent desire to start a "racial war," were related to the murder of a white hitchhiker. We concluded that it was most proper for the sentencing judge to "tak[e] into account the elements of racial hatred in this murder." In the present case, however, the murder victim was white, as is Dawson; elements of racial hatred were therefore not involved in the killing.

Because the prosecution did not prove that the Aryan Brotherhood had committed any unlawful or violent acts, or had even endorsed such acts, the Aryan Brotherhood evidence was also not relevant to help prove any aggravating circumstance. In many cases, for example, associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society. A defendant's membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury's inquiry into whether the defendant will be dangerous in the future. Other evidence concerning a defendant's associations might be relevant in proving other aggravating circumstances. But the inference which the jury was invited to draw in this case tended to prove nothing more than the abstract beliefs of the Delaware chapter. Delaware counters that even these abstract beliefs constitute a portion of Dawson's "character," and thus are admissible in their own right under Delaware law. Whatever label is given to the evidence presented, however, we conclude that Dawson's First Amendment rights were violated by the admission of the Aryan Brotherhood evidence in this case, because the evidence proved nothing more than Dawson's abstract beliefs. Cf. Texas v. Johnson, 491 U. S. 397, 414 (1989) ("[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"). Delaware might have avoided this problem if it had presented evidence showing more than mere abstract beliefs on Dawson's part, but on the present record one is left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find these beliefs morally reprehensible. Because Delaware failed to do more, we cannot find the evidence was properly admitted as relevant character evidence.

Nor was the Aryan Brotherhood evidence relevant to rebut any mitigating evidence offered by Dawson. We have held that a capital defendant is entitled to introduce any relevant mitigating evidence that he proffers in support of a sentence less than death. But just as the defendant has the right to introduce any sort of relevant mitigating evidence, the State is entitled to rebut that evidence with proof of its own. In this case, Dawson's mitigating evidence consisted of testimony about his kindness to family members, as well as evidence regarding good time credits he earned in prison for enrolling in various drug and alcohol programs. Delaware argues that because Dawson's evidence consisted of "good" character evidence, it was entitled to introduce any "bad" character evidence in rebuttal, including that concerning the Aryan Brotherhood. The principle of broad rebuttal asserted by Delaware is correct, but the argument misses the mark because, as stated above, the Aryan Brotherhood evidence presented in this case cannot be viewed as relevant "bad" character evidence in its own right.

Perhaps I'm mistaken, but I likewise see little relevance of defendant's interest in Playboy or Girls Gone Wild to whether the defendant is likely to reoffend, to the defendant's moral culpability for his particular offense, to whether the defendant is likely to be rehabilitable, or to other matters that are usually seen as relevant to sentencing. To be sure, the crimes to which he pleaded guilty are heinous, and he deserves to be punished for them. But I don't see how his consumption of pornography that depicts naked or partly naked women is more than marginally relevant to the degree to which he be punished for serious crimes involving the sexual abuse of a boy, especially given the Court's reasoning in Dawson v. Delaware. (And though Dawson was a death penalty case, its reasoning is applicable to sentencing more broadly, and has been so applied by lower courts.)

May Government Collect DNA from All Arrestees (Even Before They're Convicted)?

(Eugene Volokh)

The Third Circuit, sitting en banc, has split 8–6 on this in today's United States v. Mitchell; the majority concludes that the law authorizing this practice does not violate the Fourth Amendment. The Ninth Circuit will soon consider en banc a related question, which is whether the government may collect DNA as a condition of releasing someone on bail.

Note that this has to do with testing in the absence of probable cause (or even a reasonable suspicion) that the DNA would be evidence related to a crime. Thanks to How Appealing for the pointer.

How to Read a Legal Opinion: A Guide for New Law Students

(Orin Kerr)

With the first week of law school just a few weeks away for incoming first-year students, I thought I would repost a link to my short essay, How to Read a Legal Opinion: A Guide for New Law Students. The abstract:

This essay is designed to help new law students prepare for the first few weeks of class. It explains what judicial opinions are, how they are structured, and what law students should look for when reading them.

The essay can be recopied and reposted, so feel free to share it (and professors, feel free to distribute to students if you like — no need to ask for permission).

Lay Judgments of Judicial Decision-Making

(Orin Kerr)

Here's an interesting article that sheds light on a lot of blogospheric reaction to new legal cases: Dan Simon & Nicholas Scurich, Lay Judgments of Judicial Decision-Making, forthcoming in the Journal of Empirical Legal Studies. The abstract:

This exploratory study examined lay people's evaluations of judicial decision-making, specifically of the judicial decision-making process and the judiciary's legitimacy. Seven hundred participants were presented with three judicial decisions, which were portrayed as following on the heels of solid and appropriate legal procedure. Each decision was accompanied by one of four types of reasoning. Participants were asked to evaluate the acceptability of the decisions, focusing on the manner in which they were made and the legitimacy of the decision-maker, regardless of their outcomes. The study yielded four findings. First, lay people's judgments were highly contingent on the outcome of the judges' decisions. Consistent with the theory of motivated reasoning, participants found the decisions highly acceptable when they agreed with the judges' decision, but deemed them relatively unacceptable when they disagreed with them. Second, participants were indifferent to the modes of reasoning when they agreed with the outcomes of the decisions, but were differentially sensitive to the modes of reasoning when the judges' decisions frustrated their preferred outcomes. Third, when participants were sensitive to the modes of reasoning, they gave higher ratings of acceptability to decisions that openly admitted to good reasons on both sides of the case as compared with decisions accompanied by reasons that supported one side of the case exclusively. Giving no reasons at all was found to be more acceptable than giving a single, curt reason. Fourth, the findings replicated the coherence effect. Implications for the legitimacy of the judiciary are discussed.

Thanks to Helen Norton for the link.

Monday Bear Blogging

(Jonathan H. Adler)

I spent yesterday afternoon and early evening in Yellowstone with my family and the animals were out in force. We saw dozens of buffalo and elk, of course, but also a half-dozen pronghorn, and (of critical importance) two young black bears, one by the petrified tree turnoff and the other by Roosevelt Junction. Both were quite close, but neither made it easy to get a mug shot. Oh well.
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As a bonus, we also saw what was either a lone wolf or (more likely) a large coyote on the Blacktail Plateau, but we weren't quick enough with the camera to get a good shot.

Pakistan Senate Condemns Gay and Lesbian Event at U.S. Embassy

(Eugene Volokh)

The Nation (Pakistan) reports:

The Senate Friday severely condemned the hosting of a gay pride ceremony by US embassy in Pakistan last month and sent the matter to the Senate Standing Committee on Foreign Affairs for taking any possible action.

The committee will see whether the parliament had the jurisdiction to debate the issue in any of its houses and what kind of action could be initiated against the organisers of the gay, lesbian, bisexual and transgender (GLBT) function that was held in the US embassy in Islamabad....

The lawmakers condemned the statement of the embassy that announced support for such persons in Pakistan, saying that GLBT activities were against the basic principles of Islam and the constitution of the Islamic Republic of Pakistan, and hence could not be allowed....

Here's the U.S. Embassy's press release on the subject:

Embassy Islamabad Hosts GLBT Pride Celebration

June 26, 2011

Ambassador Richard E. Hoagland greets guests at GLBT Pride celebration on June 26, 2011
Chargé d'Affaires Ambassador Richard Hoagland and members of Gays and Lesbians in Foreign Affairs Agencies (GLIFFA) hosted Embassy Islamabad's first ever gay, lesbian, bisexual, and transgender (GLBT) Pride Celebration on June 26. This gathering demonstrated continued U.S. Embassy support for human rights, including LGBT rights, inPakistan at a time when those rights are increasingly under attack from extremist elements throughout Pakistani society.

Over 75 people attended including Mission Officers, U.S. military representatives, foreign diplomats, and leaders of Pakistani LGBT advocacy groups. In formal remarks, the Chargé underscored President Obama's May 31, 2011 GLBT Pride Proclamation that, "we rededicate ourselves to the pursuit of equal rights for all, regardless of sexual orientation or gender identity.

Addressing the Pakistani LGBT activists, the Chargé, while acknowledging that the struggle for GLBT rights in Pakistan is still beginning, said "I want to be clear: the U.S. Embassy is here to support you and stand by your side every step of the way."

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The Case Against Law School

(Todd Zywicki)

NY Times has a Room for Debate Feature, "The Case Against Law School."  Several interesting entries and multiple criticisms of the operation of law schools today, even by defenders of the current general model.

J.W. Verrett Argues for Converting CFPB Into a Commission

(Todd Zywicki)

My colleague and TOTM blogger J.W. Verrett has a column in The Washington Times making the case for converting the CFPB from a one-person director to a five-member agency.

I, of course, agree with him as I have expressed in the past.  In part this is based on my FTC experience.  As I've remarked before, I don't think you'd find very many FTC alumni who think that consumers would be better off if we spun off the Bureau of Consumer Protection from the FTC and gave the Director the powers that the CFPB head would be given.

As J.W. also notes, the idea of a five-member commission was the original Obama Administration proposal.  This appears to have been at least implicit in Professor Warren's original concept for the entity, which she said was modeled on the idea of the Consumer Product Safety Commission.  I confess that I actually originally supported the idea of moving the proposed agency within the Federal Reserve rather than having it be a stand-alone agency, but that was on the assumption that it would actually be a bureau that would be accountable to the Federal Reserve Board (like the BCP is within the FTC).  The idea of a single all-powerful unaccountable director appears to be one that was made up on the fly.

One last thing that J.W. notes is the anomaly that the CFPB director has a five-year term.  Thus, if Cordray is confirmed, for instance, in two years we could have a Republican President with one set of policy preferences on these issues and a CFPB directors with completely different preferences, which is quite predictable given Cordray's strong ideological views on consumer credit issues as evidenced by his short time as AG in Ohio.  That seems like a real train wreck in the making.  That also illustrates the reality that CFPB is really a policy-making entity, not a mere prudential-style banking regulator.

The Second Amendment and People Who Have Past Minor Misdemeanor (No Jail Time Possible) Marijuana Possession Convictions

(Eugene Volokh)

Ohio Rev. Code § 2923.13 bans gun possession by (among others) anyone who "has been convicted of any offense involving the illegal possession ... in any drug of abuse." (Ohio Rev. Code § 2923.14 allows the person to petition for relief from this disability after the person's prison, probation, and parole is up, but any such relief is discretionary with the court, and turns on the judge's opinion about whether the person "appears likely to continue to" lead "a law-abiding life.") Paul Stone had been convicted in 2006 of possession of marijuana, "a minor misdemeanor" under § 2925.11. How minor, in the state's view? It can't lead to any jail time; the only possible penalty is a fine of up to $150, plus possibly community service of no more than 30 hours. It isn't even treated as "a criminal record" for purposes of employment or licensing questions about the person's criminal record. But then in 2010, he was indicted for felony gun possession under &sec; 2923.13, based on the minor misdemeanor.

The trial court dismissed the indictment, holding that § 2923.13 didn't cover gun possession following minor misdemeanor convictions. But State v. Stone (Ohio Ct. App., decided yesterday) just reversed the dismissal of the indictment, and held that Stone could indeed be prosecuted. The court concluded that the text of &sec; 2923.13 indeed covered even minor misdemeanor convictions. And then it held that Stone lost his Second Amendment rights, because of this minor misdemeanor conviction. Here is the entirety of its Second Amendment analysis:

Appellee [i.e., Stone] also urges this court to affirm the trial court's dismissal based upon the Second Amendment to the United States Constitution, which, pursuant to District of Columbia v. Heller (2008), 554 U.S. 570, protects an individual's right to possess a firearm. In advancing this argument, appellee acknowledges that this right is not unconditional and points out that Heller identified various forms of reasonable restrictions a state may place upon a citizen's ability to have a firearm. Appellee submits, however, the limited list of such restrictions does not include, nor is there obvious historical precedent for, legislation that has the effect of completely abrogating a citizen's right to bear arms as it pertains to a misdemeanant with no criminal record.

Although appellee sets forth strong policy considerations, which might militate in favor of a legislative shift in this area of criminal law, a careful review of the statutory provisions at play in this case demonstrates that the trial court erred in dismissing the underlying indictment. Our analysis and resolution of the issue is controlled by this court's recent holding in Gex, supra.

In Gex, this court determined that a defendant's conviction for having a weapon while under disability was supported by sufficient evidence even though the disability was occasioned by minor misdemeanor marijuana possession.... Applying Gex to the case at bar, it is undisputed that appellee was previously convicted of minor misdemeanor marijuana possession in violation of R.C. 2925.11, a drug abuse offense. Appellee's previous conviction, therefore, constitutes a disability prohibiting him from acquiring, having, carrying, or using a firearm or dangerous ordnance. Because there is nothing in the record indicating appellee was relieved from the disability via the mechanism set forth under R.C. 2923.14, he could be charged, as a matter of law, with having a weapon under a disability. We therefore hold the state's position is well-taken ....

As a postscript, we again emphasize that appellee's arguments would be better directed at the General Assembly than the judiciary. Although he claims otherwise, accepting appellee's position would essentially eliminate the plain language of R.C. 2925.01(G)(1) as it relates to the disability statute — an outcome we must obviously avoid in construing statutes. Read plainly, even though R.C. 2925.11(D) does not create a criminal record, minor misdemeanor possession is still a conviction which is premised upon a statutorily-designated drug abuse offense; to wit, marijuana possession. Both appellee and the trial court are correct that the legislature has demonstrated an intent to lessen the impact of such convictions. Still, until the General Assembly specifically excludes an R.C. 2925.11 minor misdemeanor marijuana possession conviction from the purview of R.C. 2923.13(A)(3) or R.C. 2925.01(G)(1), it will remain a "drug abuse offense" and consequently a "disability" for purposes of R.C. 2923.13(A)(3).

But nothing in the Stone court's analysis actually dealt with Stone's argument that § 2923.13 violates the Second Amendment in this sort of case, and Gex, the precedent that the court relied on, didn't even discuss the Second Amendment. So while Stone specifically made a constitutional argument to the court, the court seems to have rejected the argument simply on the grounds that Stone's conduct is covered by the statute — without at all considering the possibility that the statute in this case violates the Constitution. (The court doesn't say that Stone's argument is somehow unpreserved because he didn't raise the Second Amendment question below, so I take it that either Stone did make the argument, or that in Ohio courts the prevailing party below may defend the judgment below on any ground reasonably raised by the record.)

So it seems that the court is concluding that the Second Amendment doesn't protect people who have even a minor misdemeanor marijuana possession conviction — not a felony, not a violent misdemeanor, not even a misdemeanor that could yield any time at all in jail, and not anything that involves a finding that the defendant is an illegal drug user right now — without at all explaining why this should indeed be so. Strikes me as pretty hard to defend; or am I missing something here?