Eugene Volokh's Blog, page 2746
July 19, 2011
New Ordinances from Gould, Arkansas
Relevant excerpts from this ordinance and this one:
The Mayor of the City of Gould shall not call special meetings to discuss City business without two thirds of the City Council's vote to do so.
The Mayor nor City Council members shall attend or participate in any meetings with any organization in any location without City Council approval by two thirds [vote].
The Gould Citizens Advisory Council by passage of this ordinance is hereby banned from doing business in the City of Gould.
That the said Council is, in effect, causing confusion and discourse [sic] among the citizens of Gould and as a result is contributing to the friction not only between the Mayor and Council but also among the citizens who deserve a cooperative government.
[N]o new organizations shall be allowed to exist in the City of Gould without approval from a majority of the City Council.
And a quote from a backer of the ordinances, Councilwoman Sonja Farley:
"In everything, you have somebody in control over it. In everything," said Council Member Sonja Farley.
Farley says no matter the group, if you discuss the city at all, the meeting must be approved by the city council.
"You couldn't just come in here and get with four people and decide you want to start an organization," said Farley. "You will go through your city council with documentation, the right paperwork and get an approval."
Wow. I mean, wow. Thanks to Josh Blackman for the pointer; see also this story, with a quote from Prof. (and Dean) John DiPippa. Did I say, "wow"?
Ninth Circuit Panel Reverses Conviction for Allegedly Threatening to Kill Then-Candidate Obama
The case is this morning's United States v. Bagdasarian (decided by a 2-to-1 vote).
On October 22, 2008, when Barack Obama's election was looking more and more likely, Bagdasarian, under the username "californiaradial," joined a "Yahoo! Finance — American International Group" message board, on which members of the public posted messages concerning financial matters, AIG, and other topics. At 1:15 am on the day that he joined, Bagdasarian posted the following statement on the message board: "Re: Obama fk the niggar, he will have a 50 cal in the head soon." About twenty minutes later, he posted another statement on the same message board: "shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos." Bagdasarian also posted statements on the same message board that he had been extremely intoxicated at the time that he made the two earlier statements.
Bagdasarian was convicted, but the panel majority reversed the conviction.
To understand the legal question, we need a bit of background. First, simply advocating crime, including murder of a particular politician, is not constitutionally punishable under the "incitement" exception. "George Bush deserves to die" is generally constitutionally protected speech, unless it falls within the "true threats" exception (more on that shortly). Such advocacy of violence is punishable only if it's intended to and likely to cause imminent action by another, or if it's a solicitation of a specific criminal act. (The boundaries of this "solicitation" exception are not clear, but it seems likely that, to be solicitation, speech would have to be much more specific than just a statement that some political figure ought to be killed.)
Second, the Supreme Court's first case discussing the "true threats" exception, Watts v. United States (1969), held that even some language that appears to overtly threaten political leaders is nonetheless constitutionally protected:
The incident which led to petitioner's arrest occurred on August 27, 1966, during a public rally on the Washington Monument grounds. The crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views. According to an investigator for the Army Counter Intelligence Corps who was present, petitioner responded: "They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." "They are not going to make me kill my black brothers." ...
We do not believe that the kind of political hyperbole indulged in by petitioner fits within [the term "threat"]. For we must interpret the language Congress chose "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." The language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was "a kind of very crude offensive method of stating a political opposition to the President." Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
Third, the Court's latest true threats case, Virginia v. Black (2003), stated that "'[t]rue threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." This seemed to reject some lower court decisions that said that the exception covers statements that are reasonably perceived as threatening, regardless of whether the speaker intends them to be perceived. Since then, lower courts have disagreed about whether Black deliberately rejected those lower court decisions, especially given that the court didn't really discuss that particular controversy in detail. But the Ninth Circuit panel in Bagdasarian expressly held (and on this the judges were unanimous) that Black's adoption of the "means to communicate a serious expression of an intent to commit an act of unlawful violence" really does require proof of the speaker's intent.
But, fourth, Virginia v. Black didn't really deal with the core question arising in many true threats cases, which is how exactly "true threats" are to be sorted from mere vituperation or advocacy of violence. "I will kill the President" and "the President is a menace to the country and a mass murderer of American soldiers and the soldiers we're fighting, so he deserves to die" are logically distinguishable — but in between them there are many statements that both express contempt and could be reasonably understood as suggesting that the speaker may himself take action, and that the speaker means us to perceive him as potentially taking such action.
In any event, on these particular facts, the panel majority concluded that (1) there wasn't enough evidence to find beyond a reasonable doubt that Bagdasarian's statements would be reasonably perceived as a true threat — as opposed to just a statement of what someone ought to do, or for that matter just hyperbolic condemnation — and (2) there wasn't enough evidence to find beyond a reasonable doubt Bagdasarian meant his listeners to perceive his statements that way. The dissenting judge disagreed. For the arguments, see the extended discussion at pp. 9809–9818 and 9822–9831 of the slip opinion; I can't think of an excerpt that can do justice to the judges' arguments.
My sense, by the way, is that there's a good chance that the Ninth Circuit will rehear the case en banc, given the subject matter of the case, the presence of a forceful dissent, and the tension among some past Ninth Circuit precedents about true threats, which can lead other judges to see the panel opinion as not fully consistent with some of those precedents. And if the Ninth Circuit doesn't do this, and the federal government petitions for certiorari, there is a good chance that the Supreme Court will agree to hear the case, given the disagreement between the lower court and the Executive Branch, the uncertainty among lower courts about how to read Virginia v. Black (see the paragraph beginning with "Third" above), and the subject matter of the case.
Thanks to How Appealing for the pointer.
Hoaxes and the First Amendment
Haley v. State, decided July 8 by the Georgia Supreme Court, is the latest case dealing with the thorny problem of the First Amendment and knowingly false statements of fact. Andrew Scott Haley apparently created an online hoax:
The evidence at trial, viewed in the light most favorable to the verdict, showed that Haley, under the user name "catchmekiller," made and posted two videos on the YouTube website. The videos were part of an online murder mystery "game" for participants who could post and review comments on the YouTube page to learn the identity of the "catchmekiller."
Haley posted his first video on February 1, 2009. He appeared in the video, but his face and voice were distorted. Haley said that during the game he would "confess to 16 murders." Each week there would be a new video with new clues, which would lead to the body of a missing murder victim, and "[o]nce all 16 bodies are found, you'll know exactly who I am and I will release the video or where I can be found." The video also made numerous references to the highly publicized nature of the underlying cases, the involvement of law enforcement agencies in investigating the cases, and the possibility that viewers of the videos might seek to identify and find who was releasing them. Thus, Haley said on his first video:
The only clues that I am giving you are clues never released by the press or by a police department. What you may find out on a lot of these people was I'm going to tell you one thing, the police and the news will release something completely different. They may have released what she was wearing or what he is wearing that day and I'll prove different. That's the only way I'm gonna be able to prove that this video is real because I have knowledge that the police know about, the FBI know about and you don't. So every week a new clue, every clue leads to a new body, every new body leads to a new clue that eventually leads to me, hoping that no one else finds out who I am and why I've done this. Don't try to chase me. Don't try to catch me.... The first person to solve all murders becomes the hero.... Be prepared to answer to the police, to answer to the FBI, to answer to the News. They're all gonna want to know how you did it .... If you decide to play the game, please go to video number two.
The video then listed the first "clues," which related to the case of Tara Grinstead, a young Georgia schoolteacher who had disappeared in 2005. [More details of the hoax omitted; see the opinion if you want to read them. –EV]
The court's account suggests that the statements were reasonably read as actually claiming that the poster was the killer, rather than being clearly visible to be fiction or parody. (Such fictional or parodic statements are constitutionally protected, precisely because they are not reasonably seen as making false statements of fact.) Does the knowing falsehood strip the statements of First Amendment protection?
Yes, said the court, when the defendant "contemplated that [the statements] would come to the attention of" the police. In that situation, the statements violate the Georgia false-statements-to-the-government statute, which criminalizes "knowingly and willfully ... mak[ing] a false ... statement ... in any matter within the jurisdiction of any department or agency of state [or local] government." And when limited to knowingly false statements that are "knowingly and willfully [made] in a matter within the jurisdiction of a state or local department or agency," which is to say statements when the defendant "contemplated that it would come to the attention of an agency with the authority to act on it," the statute is constitutional — even when the defendant did not "ma[k]e the false statement directly to the government agency."
It is debatable whether a false statement, standing alone, lacks any First Amendment protection, as discussed at length by the majority and dissenting opinions in United States v. Alvarez, 617 F3d 1998 (9th Cir. 2010) [a case striking down the Stolen Valor Act –EV]. However, a knowingly and willfully false statement that is made knowingly and willfully in a matter within a government agency's jurisdiction is a lie that threatens to deceive and thereby harm the government, if only because the government may need to expend time and resources to determine the truth. See id. at 1212–1213. Such harm would not be self-inflicted by the government, as might be said if an agency reached out to act on a false statement someone made without any expectation that it would reach the government. Instead, the State may lawfully punish such a course of potentially deceptive and injurious conduct.
Earlier the court does mention that reading the statute more broadly, to cover any knowingly false statements that might eventually come to the attention of a government agency that has jurisdiction over the behavior described in those statements — even when the speaker does not expect that this will happen — might raise serious First Amendment problems:
If all it took for a Georgia citizen to be convicted of a felony was the convergence of a lie and a government agency's jurisdiction over the subject matter of the lie, a wide swath of communication would be criminal. And even recognizing that some types of false statements may not qualify as "speech" with First Amendment protection, see, e.g., Garrison v. Louisiana, 379 U.S. 64, 74–75 (85 SC 209, 13 LE2d 125) (1964) (holding that knowingly or recklessly false defamatory statements do not enjoy constitutional protection), the broad criminalization of false statements would have a chilling effect on protected speech that may be close to the line, including statements about public officials and public affairs that are in the heartland of First Amendment protection. As the United States Supreme Court explained..., while "there is no constitutional value in false statements of fact," such erroneous statements are "nevertheless inevitable in free debate" and "punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press." Accordingly, "[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters."
[Reading the statute without a limitation to knowing false statements made with the contemplation that they would come to the government's attention] would also raise significant due process concerns. Even assuming that a knowingly false statement should be viewed as a verbal "act" rather than protected "speech," lying is commonplace, lies are often considered innocent (e.g., "white lies"), and we are aware of no federal or state laws (as opposed to moral and religious doctrines) that have deemed the making of a knowingly false statement, without more, a criminal act. If a person making a false statement need have no knowledge or intent of any kind that his deceptive statement will come to the attention of a government agency with authority to act on it, then the basic due process notion of fair notice would be in doubt. Section 16–10-20 would then criminalize a wide array of statements that have always been deemed (at least legally) innocent, and the statute would be a trap for the unwary. Likewise, if § 16–10-20 allowed prosecutors to charge any knowingly false statement that the State happened to learn of and that happened to come within the jurisdiction of some state or local agency, then the opportunities for arbitrary and discriminatory enforcement would be substantial. See Kolender v. Lawson, 461 U.S. 352, 357 (103 SC 1855, 75 LE2d 903) (1983) ("As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.").
[Footnote:] A couple of the many possible hypothetical scenarios illustrate this point. A man might return from a fishing trip to Lake Oconee, during which he caught nothing, and tell his friends a "fish story" — that he caught a "dozen big bass." If this story unexpectedly was passed on to the Department of Natural Resources, which decided to investigate because the number of fish the man lied about catching was above the legal limit of ten largemouth bass, see Ga. Comp. R. & Regs. 391–4-3-.05 (1) (a), the man could be convicted as a felon under § 16–10-20 — even if, when DNR rangers went to ask him about the story, he immediately admitted it was a lie. Or an opponent of a powerful elected official might write angrily, and falsely, in his private journal that the official had stolen public funds, an issue that local police have jurisdiction to investigate. If the opponent lost his journal in a taxi and it was found and given to the local police, he could be targeted for criminal prosecution under § 16–10-20, even if he immediately admitted to the police that the statements were false and he had no idea that they would ever come to the attention of the government.
As I've noted before, I think the question of which classes of knowingly false statements of fact are constitutionally unprotected is a difficult one. My view was generally that there was a First Amendment exception for knowingly false statements of fact (and not just for particular subclasses, such as libel, fraud, perjury, false statements to government officials, statements that put another in a nondefamatory false light, and the like) with an exception to that exception for certain kinds of statement the punishment of which was especially likely to deter even true statements (such as false statements about the government generally, and false statements about science and history). I think that's the best way of explaining the Court's past statements on the subject; and I think that saying instead that there are lots of narrow First Amendment exceptions, one for libel, one for fraud, one for perjury and false statements to government officials, one for statements that put another in a nondefamatory false light, and so on, is likely to threaten free speech protection more broadly, since the more exceptions there are, the more arguments can be made for adding "just one more." (I similarly think that upholding some such laws under "strict scrutiny" would pose similar problems, because it would make strict scrutiny look like a much easier test to satisfy in free speech cases.)
At the same time, I agree that this is a difficult question, and there are good arguments against my position — arguments that the Ninth Circuit accepted in the Alvarez case that the Georgia Supreme Court cited. Moreover, United States v. Stevens (2010) suggests that First Amendment exceptions should be defined based on their historical boundaries, and I haven't done any serious research on the history of this particular exception (nor do I know of such research done by others). But, setting aside the Stevens historical inquiry, I think the Haley court was correct that knowingly false statements to government agencies, and knowingly false statements that one contemplates will come to the attention of a government agency that has jurisdiction over the matter you describe, should be seen as constitutionally unprotected. And this case, involving a knowing hoax that seemed pretty sure to waste a considerable amount of police time, strikes me as a good example of why that should be so.
"Let 'em Play": A First Solution
Although the Serena Williams episode provoked my interest in the puzzle of temporal variance, I'll start not with tennis, but with other sports in which a practice of temporal variance might seem more secure – sports like football, hockey, and basketball. In each, whistles for minor physical contact toward the end of tight contests predictably elicit a cry from the stands: "Let 'em play!" or "Swallow the whistle!"
Though the plea is familiar, its rationale is obscure. To be sure, the tighter the rules are enforced, the less physical contact there will be. And observers may reasonably disagree about the level of physicality that makes a sport the best it can be.
But however a league might answer that question, it is not self-evident why the optimal degree of laxity should differ in crunch time during an NBA game relative to ordinary time, or throughout the NHL playoffs relative to the regular season. It is not obvious what can be said for "letting them play" at this particular time different in character or force from what can be said generally for "letting them play."
Still, basketball remains a good place to start. I doubt that many tennis fans are justifiably confident that tennis officials do (or don't) allow players a little more foot faulting toward the end of close matches than earlier. Maybe they do (or don't), but foot faults just aren't called enough to permit those without intimate knowledge of the sport to be sure what the enforcement patterns are.
Basketball is different. That basketball referees respect some measure of temporal variance seems clear to many hoops fans. Maybe that's because the case for temporal variance in basketball is unusually clear. (Or maybe not.) If we can explain and justify slack in the calling of basketball fouls, we might be better able to assess whether temporal variance makes sense elsewhere too.
One rationale for temporal variance invokes essentially aesthetic considerations: the referee's whistle disrupts play, thereby reducing spectators' enjoyment of the action. And while disruption of play almost always incurs an aesthetic cost, disruption during crunch time is especially costly (aesthetically speaking) given heightened dramatic tension.
There is something to this justification for temporal variance. It would seem to apply, though, only when play would continue uninterrupted but for the calling of a foul. However in some sports that arguably respect temporal variance play stops either way.
For example, it appears to me (and not only to me) that football officials are often more reluctant to call defensive pass interference during crunch time even though an incompletion stops play just like a penalty flag. Because an aesthetic or dramatic preference that play continue unabated wouldn't seem to explain or justify temporal variance everywhere it appears, it might not provide the whole story even in basketball. So without denying that appreciation for dramatic excitement can help explain why officials should give the competitors somewhat greater slack during moments of high drama, we have reason to look for an alternative account too.
A second answer, recently advanced by Chicago economist Tobias Moskowitz and SI columnist L. Jon Wertheim in their book Scorecasting, depends entirely on the omission bias. By relying entirely on a cognitive bias, however, the authors all but ensure that, even insofar as their account might help explain temporal variance, it is unlikely to justify it.
The alternative account I offer runs as follows:
(1) In the main, a sanction imposed for an infraction has a greater expected impact on contest outcome (against the rule-violator) than does the infraction itself (in the violator's favor). This must be so for the sanction to serve a deterrent function in addition to a restitutionary one.
(2) The expected impact of all outcome-affecting contest events – e.g., scores, base hits, yardage gains, infractions, penalties, etc. – are not constant, but context-variant. To start: the closer the contest, the greater the impact. The variance that matters for my purposes, however, is temporal: when the contest is close (and holding the closeness of the contest constant), the expected impact of outcome-affecting events varies in inverse proportion to the distance remaining to contest's completion.
For example, touchdowns and baskets, 15-yard penalties and free throw opportunities, all have greater impact on the expected outcome when occurring 2 minutes before the end of a then-tied game than when they occur 2 minutes from the start. (I expect pushback here, and look forward to debates in the comments.)
(3) From (1) and (2) it follows that the absolute magnitude of the gap between the competitive impact of the infraction (say, a non-shooting foul) and the competitive impact of the penalty imposed for the infraction (say, the award of free throws) is significantly greater in crunch time during close games than earlier in the same contest. The penalty becomes more overcompensatory in absolute terms.
(It does not become more overcompensatory in relative terms, which is why some of yesterday's posters rightly observed that if the stakes become higher for the competitor who would wish to invoke temporal variance, they become higher for their opponents too.)
(4) It is a general principle of competitive sport that athletic contests go better insofar as their outcomes reflect the competitors' relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase and reward. (This is a first cut; no doubt my proposed principle could be profitably refined further.) This is why we prefer to reduce the impact of luck on outcomes (e.g., we generally want playing surfaces to be regular thus reducing unpredictable bounces).
It is also why almost everybody agreed, in Casey Martin's lawsuit against the PGA, that if (as the Supreme Court majority essentially concluded, but as the dissent denied) the central athletic challenge the PGA Tour presented was the ability to hole a ball by means of striking it with a club, in the fewest number of strokes, while battling fatigue, then golf is less good – it exemplifies a core value of sport less well – if it requires competitive golfers to walk the course even when it is extraordinarily difficult for them to do so and when they are greatly fatigued without walking.
(5) From (3) and (4) we have a reason (not a conclusive reason) to enforce restrictions on minor or incidental contact less strictly toward the end of close contests if – as is contestable but surely plausible – the ability to refrain from minor bodily contact with opponents is a peripheral athletic virtue in basketball as we know it. If this is so, then a penalty of nominally constant magnitude that it is optimal to impose early in a contest may become suboptimal later in that same contest.
To be clear: I do not claim that the excellence of avoiding minor contact is something that no sport could wish most to valorize. My argument for temporal variance in basketball is explicitly contingent on its being the case that this particular excellence does not rank so highly among the excellences that basketball wishes to feature and encourage. Whether this is so is an interpretive question.
That's my proposed pro tanto argument for temporally variant enforcement of non-shooting fouls in basketball. The argument extends to similar fouls in sports like football and hockey. At bottom, it's based on an aversion to the awarding of windfall remedies disproportionate to the harm suffered. That's a principle the law frequently endorses – from the harmless error rule to contract law's material breach doctrine.
July 18, 2011
Law Professors Object to Obstruction of Law Professor
The Journal-Sentinel reports on a letter by several dozen prominent law professors objecting to Senator Ron Johnson's efforts to block consideration of President Obama's nomination of University of Wisconsin law professor Victoria Nourse to a seat on the U.S. Court of Appeals for the Seventh Circuit. The signatories represent quite an ideologically diverse group (and include a couple of conspirators).
The Secret of International Development Revealed!
Via Professor Mankiw's blog, I don't quite know whether this is a genuine academic paper or a submission for the Ignobel Prize. As Professor Mankiw says:
These may be the least expected sentences I have read lately: "This paper explores the link between economic development and penile length.... The GDP maximizing size is around 13.5 centimetres."
Michael McConnell on Larry Tribe and the Debt Ceiling
Michael McConnell, a leading First Amendment scholar (who is now at Stanford) and former Tenth Circuit judge (2002–2009), praises Larry Tribe's stand on the constitutionality of the debt ceiling (see, for instance, this guest post). An excerpt from Prof. McConnell's post at Advancing a Free Society:
A week ago Washington was abuzz with the seemingly nifty idea that Section Four of the Fourteenth Amendment could empower the President to borrow money above the debt ceiling, without congressional authorization. Now the idea seems to be dead. Not only has Secretary Geithner's lawyer repudiated the suggestion, but the Secretary has denied he ever even floated the idea.
Part of the reason this idea lost favor is that it was wrong on the merits. But it helped – maybe even decisively – that Professor Laurence Tribe, professor at Harvard Law School and well-known Obama enthusiast, stood up and publicly denounced the faulty constitutional interpretation on which it rested, in an op-ed in the New York Times.
Professor Tribe deserves praise for this. It is not easy for a prominent intellectual to pull the rug out from under a political scheme of his allies, especially in a high-stakes partisan confrontation like the debt ceiling talks in Washington, where the Administration would dearly love to neutralize the leverage the debt ceiling gives Congress to force budgetary reform. This is what distinguishes a scholar from a hack: the willingness to analyze a question dispassionately and tell the truth even when it is politically inconvenient.
Nothing New Under the Sun
Many of you may know about this, but I just learned about the ancient Roman bikini:
[image error]
More at Wikipedia. Thanks to Don Kates for the pointer.
Destroying Hard Drive Leads to Conviction for Obstructing Federal Investigation
The case is United States v. Hicks, an unpublished decision by the Fourth Circuit in which a child pornography suspect destroyed his hard drive in response to learning of the investigation.
According to the government's brief, the defendant used an e-mail account to communicate with a suspected child pornography website and to purchase videos from it. Federal agents traced the e-mail account to the suspect, and they then went to the suspect's home to ask questions. The suspect wasn't there, but they left a business card with the suspect's father, together with the request that the suspect contact them about his computer. The business card stated that the lead agent's job position was as a "Child Pornography Team Leader." The suspect called the next day and agreed to meet with the agents. During the subsequent meeting, the suspect admitted that he had seen some child pornography online and that he was familiar with some websites under investigation, but he denied having sought out child pornography or having saved any to his computer.
The agents asked the suspect if they could see his computer to confirm his story, but the suspect replied that they could not: When the suspect learned that the feds had dropped by, and when he realized that they were investigating him for child pornography, he had decided to destroy his hard drive. He "didn't want to take any chances" of going to jail, he said. According to his brief, he had smashed his hard drive with a hammer, ran a magnet over it, and "thr[ew] the pieces out of his car window while driving."
The feds apparently lacked the evidence to charge the suspect with possessing child pornography, but instead they charged and convicted him under a 2002 statute passed as part of the Sarbanes-Oxley Act, 18 U.S.C. 1519:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
On appeal, the Fourth Circuit affirms in a per curiam opinion. First, the defendant argues that the 2002 law should not apply to him because it was intended to apply to financial crimes not individuals and personal hard drives. The court dismisses this in a footnote (see fn1) on the ground that the statute is unambiguous. The defendant then makes a Due Process challenge. Although it's somewhat hard to follow, the argument seems to be that the computer was his own private property and that interfering with his control of the property somehow violated Due Process. The court disagrees, concluding that the passage of the statute and the notice given to him as to his charges satisfied the Due Process clause.
Finally, the suspect makes a Fourth Amendment argument, although the court muddles its brief analysis. The defendant argued that it violated his Fourth Amendment rights to convict him of destroying the computer given that it was his computer. According to the defendant, the Fourth Amendment gave him a right to control his property that was taken away when the law took away his right to destroy it, constituting an unlawful seizure. The court disagrees, stating that "there was no meaningful interference with Hicks's possessory interests [and therefore no seizure] because he did not have a property right in the images of child pornography. See Helton v. Hunt, 330 F.3d 242, 247 (4th Cir. 2003)."
For what it's worth, that's not quite right. A possessory interest has nothing to do with a property right. Indeed, the whole point of contraband crimes is that they are crimes for having a possessory interest in what one cannot lawfully possess — that is, for possessing something for which one cannot have a valid property right. Helton v. Hunt says nothing to the contrary. Further, the defendant's claim was as to the seizure of his physical hard drive, not contraband images which may or may not have been stored inside it. The court is right that there was no seizure, but it's for a different reason: the government never took control of the property that the defendant elected to destroy. A seizure requires an actual submission to law enforcement control, see California v. Hodari D, which never occurred here. Anyway, it's not a big deal: This is a non-precedential opinion, and the court was right that there was no seizure — and even if there was a seizure, there is no possible remedy here. Still, I thought I would point it out anyway.
Thanks to FourthAmendment.com for the link.
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