Tag: free speech

British Student Jailed over a Tweet

I had to read this story twice and I still cannot quite bring myself to believe it. Apparently, a British judge sentenced a 21 year old biology student to 56 days in jail for making fun of a tragic near-death experience of a soccer player. As Fabrice Muamba, a Bolton Wanderers midfielder, collapsed in mid-play due to a heart-attack, Liam Stacey tweeted “LOL (laugh out loud). **** Muamba. He’s dead!!!’”

Disgusting and childish? Yes! But did the tweet warrant a prison sentence and branding of Stacey, who was drunk at the time of his tweeting, as an inciter of “racial hatred” (Muamba is black, while Stacey is white)? What’s next, flogging for making fun of fat people? Thank goodness that the First Amendment of the U.S. Constitution protects free speech—even thoroughly tasteless and deeply offensive speech. Otherwise there is no telling where our political elite would lead us.

There is, of course, a larger point here. Britain, like some other European countries, suffers from deep fissures along racial, religious, national, and class lines. The elite has attempted to fix those problems by increasingly regulating speech and criminalizing behavior at an astonishing rate of one new offense a day between 1997 and 2010. (The new Conservative/Liberal Democratic coalition government has promised to do things differently, but no major repeal of law and regulation has yet taken place.) How can a society address problems that it cannot talk about? How can it remain free if so much is forbidden?

Feds Spin Yarn About ‘Significant Threat’

Federal prosecutors told a federal judge that they’re prosecuting an elderly man because his actions constitute a “ significant threat” to the legal system.

Guess what he did?

(a) He smuggled stolen FBI documents to a suspected Al-qaeda prisoner in the NY jail.

(b) He attended court hearings and made belligerent outbursts.

(c) He wrote nasty letters to prosecutors and judges accusing them of corruption.

Actually, all he did was distribute pamphlets outside the courthouse.  And in the view of federal attorneys, if such pamphlets express an opinion, or quote our second president saying jurors can and should vote according to their conscience, then the distributor must be arrested and jailed—at least if he gets too close to the courthouse.

Previous coverage here.

Not Everything Can Be a Federal Crime

Cato legal associate Carl DeNigris co-authored this blogpost.

Over the last few decades, the number of federal crimes has exploded. The U.S. criminal code has grown so large and so expansive that no one is exactly sure how many federal crimes are actually on the books, with estimates ranging from 4,000 to 300,000. As Justice Scalia has noted, “It should be no surprise that as the volume increases, so do the number of imprecise laws.”

Many individuals and organizations from across the ideological spectrum have voiced concern over this growing trend, recognizing that broadly defined crimes lack the clarity traditionally required before depriving citizens of their liberty.

The expansion of 18 U.S.C § 1001, which criminalizes the knowing and willful making of materially false statements in “any matter within the jurisdiction of” the United States, exemplifies this broadening scope. Cory King was prosecuted under this statute for making a false statement to a state official wholly unconnected to any federal agency or investigation. Yet, the Ninth Circuit held that Mr. King violated § 1001 because the subject matter of his statement was one over which a federal government agency possessed regulatory authority.

King has now asked the Supreme Court to hear his case. Cato has joined the National Association of Criminal Defense Lawyers and the Texas Public Policy Foundation on a brief supporting him and arguing that the Ninth Circuit stretched § 1001 beyond its proper jurisdictional reach. Such an unbounded interpretation risks greater over criminalization and further misuse of the federal criminal code.

Moreover, since § 1001 is a “process crime” that focuses on offenses “not against the particular person or property, but against the machinery of justice itself,” an excessively broad construction would undermine the integrity of the criminal justice system. Wider application of such crimes facilitates pretextual prosecutions, in which “the operating philosophy seems to be that, if the government cannot prosecute what it wished to penalize, it will penalize what it can prosecute.”

Such an arbitrary and far-reaching application of the criminal code – the federal criminal code, at that – has no place in a free society.

The Court will decide whether to take up King v. United States sometime this spring.

Why Is Massachusetts Trying to Ban Truthful Information About Hedge Funds?

The Massachusetts Uniform Securities Act prohibits general solicitation and advertising by anyone offering unregistered securities, ostensibly for the purpose of furthering state and federal disclosure schemes. Yet this ban on public communications has been applied so broadly that it has undermined those purported disclosure goals.  For instance, the ban has prevented individuals who have no interest in investing in any security – such as journalists, academics, students, and others who are not wealthy or financially sophisticated – from receiving truthful, non-misleading information about hedge funds.

In Bulldog Investors v. Massachusetts, an investment company maintained an interactive website that provided information about its products. Because Bulldog was not registered in Massachusetts, however, the State filed an administrative action against the firm, demanding it take down its online content.

In response, Bulldog joined a group of other firms and individuals – including some who have no interest in investing but wish to read the website information – in a lawsuit claiming that the Massachusetts ban violates their First Amendment rights. The Supreme Judicial Court of Massachusetts upheld the ban, so the plaintiffs have asked the U.S. Supreme Court to take the case.

Cato, along with the Competitive Enterprise Institute and a group of journalists and academics, has now filed an amicus brief supporting that request and arguing that the Massachusetts law is an unconstitutional ban on free speech. We show that the state’s claim that the ban furthers a larger federal regulatory scheme ignores the judgment of many federal officials (from both parties) who have concluded that such bans undermine these goals.

The state’s alleged disclosure interest is just a pretext for coercing companies to register in Massachusetts, and is therefore an unconstitutional attempt at circumventing federal preemption. But even if the ban furthers a legitimate state interest, it is so broad that it is has substantially chilled both truthful, non-misleading commercial speech and noncommercial speech alike.

A law so repugnant to the First Amendment cannot stand.

A Jury’s ‘Secret’ Power

This month’s Wisconsin Lawyer has an article entitled “Nullification: A Jury’s ‘Secret’ Power,” by Erik R. Guenther. Here is an excerpt:

When “[t]he purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge,”should the jury be kept in the dark about its fundamental power to decide the justness of the law as applied in a particular case? Should the power remain a secret (which is referred to only by a pejorative – nullification) rather than be acknowledged as an inherent, appropriate, and recognized part of the jury function?

Read the whole thing.  The feds are still fighting hard to keep the jury’s power ‘secret’—so hard that free speech must be punished.

For additional background, go here and here.

Sebelius Admits ObamaCare Exchanges Aren’t Happening, Then Disqualifies Herself from Office

Politico Pro has published a short but remarkable article [$] stemming from an interview with HHS secretary Kathleen Sebelius. It offers a couple of illuminating items, and one very glaring one.

First, Sebelius undermines the White House’s claim that “28 States and the District of Columbia are on their way toward establishing their own Affordable Insurance Exchange” when she says:

We don’t know if we’re going to be running an exchange for 15 states, or 30 states…

So it turns out that maybe as few as 20 states are on their way toward establishing this “essential component of the law.” Or maybe fewer.

Second, the article reports the Obama administration has reversed itself on whether it has enough money to create federal Exchanges in states that decline to create them. The administration has repeatedly claimed that the $1 billion ObamaCare appropriates would cover the federal government’s costs of implementing the law. And yet the president’s new budget proposal requests “another $1 billion” to cover what Sebelius calls “the one-time cost to build the infrastructure, the enrollment piece of [the federal exchange], the IT system that’s needed.”

In other words, as I blogged yesterday, the Obama administration does not have the money it needs to create federal Exchanges. Therefore, if states don’t create them, ObamaCare grinds to a halt. (Oh, and this billion dollars is the last billion the administration will request. Honest.)

Most important, however, is this:

Even if Congress does not grant the president’s request for more health reform funding, Sebelius said her department will find a solution. “We are going to get it done, yes,” she said.

An HHS staffer prevented the reporter from asking Sebelius what she had in mind.

This is a remarkable statement. Sebelius basically just copped to a double-subversion of the Constitution: Congress appropriates money for X, but not Y. Sebelius says, “I know better than Congress. I’m going to take money away from X to fund Y.” Sebelius has already shown contempt for the First Amendment, first by threatening insurance carriers with bankruptcy for engaging in non-fraudulent speech, and again by crafting a contraceptives mandate that violates religious freedom. Now, she has decided the whole separation of powers thing is for little people. What will Sebelius do the next time something gets in the way of her implementing ObamaCare?

I don’t see why a federal official should remain in office after showing so much contempt for the Constitution she swore to uphold.

The First Amendment Protects Students’ Rights to Speak on Religious Subjects

If the First Amendment means anything, then school officials cannot prohibit students from handing out gifts with Christmas messages due to the religious content of those messages. Nonetheless, the Fifth Circuit held en banc that student speech rights are not “clearly established,” and that, therefore, two Plano, Texas officials could invoke qualified immunity to shield themselves from liability for doing so.

Yesterday Cato filed an amicus brief supporting the students’ request that the Supreme Court hear their case—our third brief in this long-running saga. We argue that educators have fair warning that viewpoint-based discrimination against student speech violates the First Amendment and thus may not invoke qualified immunity.

While the Fifth Circuit held that a constitutional right must have previously been defined with a “high degree of particularity” in a case that is “specific[ally] and factually analogous” to be clearly established, the Supreme Court has repeatedly said that neither “fundamentally similar” nor “materially similar” cases are required and that general statements of law can give fair warning. Indeed, if the Fifth Circuit’s qualified-immunity standard is upheld, it will be so difficult to establish fair warning for unconstitutional actions that qualified immunity will cease to be “qualified.”

Student speech rights were clearly established by the foundational student-rights case of Tinker v. Des Moines School District (1969), wherein the Court held that student speech cannot be suppressed unless the speech will “materially and substantially disrupt the work and discipline of the school,” subject to limited exceptions. Such exceptions include lewd or vulgar speech, or speech that may reasonably be viewed as advocating unlawful drug use. Certainly the student speech at issue here, which included Christmas greetings written on candy canes, and pencils and other small gifts with messages like “Jesus loves me, this I know, for the Bible tells me so,” does not fall under those exceptions.

We further argue that the same standard for determining whether a law is clearly established should determine whether a court can look to nonbinding precedent; if Supreme Court and relevant-circuit precedent is on point, courts should not look to authority from other jurisdictions. These standards maintain the proper balance between providing officials with fair notice of behavior that could result in civil liability and ensuring that individuals have legal recourse when their rights are violated.

The Supreme Court will decide later this winter whether to take the case, Morgan v. Swanson, and hear argument in the fall.

Thanks to Cato legal associate Anastasia Killian for her help with this post, and with our brief.