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Volokh Conspiracy: The controversial punishment of Barrett Brown: A deep dive

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Ive read a lot of criticism recently about the sentencing of Barrett Brown. The online commentary mostly portrays Browns sentence as a disturbing example of prosecutorial abuse, in which the Obama Administrations war on journalists and war on hackers came together to shred First Amendment freedoms. I wondered, is that true? What really happened in the case, and was Browns sentence troublesome or not?

I spent some time looking into this over the last few days. Trying to break down the sentencing issues in the Brown case is actually pretty hard, as a lot of the key documents have not yet been released. The guilty plea and sentencing memos are under seal, and the transcript of the sentencing hearing has not yet been made public. So any conclusion right now has to be tentative, as we dont yet know all the facts.

With that said, here are three tentative conclusions. First, the sentencing judge may have made some mistakes in calculating Browns sentence. Second, if the judge did make those mistakes, they may have led the judge to sentence Brown to an improperly long sentence but then, oddly, they may alternatively have led the judge to sentence Brown to an improperly light sentence. Third, if there were errors, they were pretty technical errors. They were errors in interpreting an esoteric provision of the Federal Sentencing Guidelines, not anything relating to a war on hackers or a war on journalists.

In that sense, the Barrett Brown case is pretty different from the case of Andrew Auernheimer, aka weev (and my former client). From indictment to appeal, the weev prosecution involved a long list of plainly troubling prosecution theories that had broad implications for civil liberties online. The Brown case raised some interesting legal issues at the beginning. Ill touch on some of them here, but others Ill have to leave out just to keep this post from turning into a book. But at this late stage, at sentencing, the legal issues in the Brown case arent as grand as a lot of people seem to think.

With that enticing introduction, lets dive in.

Ill begin with some context. Barrett Brown pled guilty to three crimes. First, he helped some hackers evade detection by acting as an intermediary for them. That made him an accessory after the fact in violation of 18 U.S.C. 3, which punishes one who, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment[.] Second, when a search warrant was executed at his moms house as part of the hacking investigation, he tried to hide his computer from the agents in violation of 18 U.S.C. 1501. (His mom helped, too; she was charged and received probation.) Third, after the search, he posted a Youtube video threatening the agent investigating him.

Despite the controversy surrounding the Brown case, it seems to be common ground that Brown did in fact commit these three crimes. He admitted as much at the sentencing hearing, and there werent any stretches of the law involved in the three counts to which Brown pled guilty. There are harsh criticisms of a different count from an earlier indictment that was later dismissed, which Ill get to later. And there are a lot of objections that Brown wasnt really the biggest criminal in the world. He helped the hackers, many have pointed out, but he isnt a hacker himself. But at least as a legal matter, the factual basis of the three guilty pleas seems pretty uncontroversial.

In this post, Ill focus mostly on the controversy over the sentence Brown received following his guilty plea. By way of background, federal judges calculate sentences in federal criminal cases using a complicated framework set out in the Federal Sentencing Guidelines. The Guidelines work by calculating an offense level for every crime that tries to gauge the seriousness of the offense. It starts with a base offense level that applies to all such crimes, then considers specific offense characteristics that add or subtract points baed on the specific circumstances of that case. Judges then take the resulting offense level, calculate the defendants criminal history, and then go to this chart to figure out what the sentencing range should be. The resulting range isnt legally binding on the judge, but its the usual ballpark range for the sentence.

In the sentencing in Browns case, the defense attorneys started off with a significant victory. Although Brown pled guilty to three crimes, his defense attorneys persuaded the judge to punish him as if he had only pled guilty to one of the three crimes. The Federal Sentencing Guidelines have some pretty arcane and complicated rules for how to calculate sentences when a person commits several offenses, and in this case the judge decided to calculate the sentence based on the most serious offense, helping the hackers as an accessory after the fact. The other offenses played a minor role that well get to later on, but the bulk of the sentencing was based on being an accessory after the fact to the hackers.

To calculate Browns sentence, the judge started with the guideline for being an accessory after the fact, Section 2X3.1. You can read that here. At first it seems pretty simple. You calculate the offense level for an accessory after the fact, it explains, by starting 6 levels lower than the offense level for the underlying offense. In other words, this guideline is derivative. To figure out how serious it is to be an accessory after the fact for a hacking offense, you have to first figure out how serious the underlying hack was and then deduct six levels.

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Volokh Conspiracy: The controversial punishment of Barrett Brown: A deep dive

Redefining free speech in our hyperlinked world

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U.S. Supreme Court justices are not supposed to say anything interesting outside of the court, but in 2010 Justice Stephen Breyer was asked in a rare TV appearance if he thought a Florida pastor had a First Amendment right to burn a Quran.

First, Breyer cited the late Justice Oliver Wendell Holmes old line about not having the right to cry fire in a crowded theater. Then, he asked some interesting questions: What does that proverbial theater look like in our hyperlinked world? And what is our eras equivalent of being trampled to death in that theater? As if remembering himself, he quickly added that the answers to such questions get defined in actual cases before the court, over time (as opposed to on Good Morning America).

At the time, Breyers TV provocation was roundly denounced by all right-minded free speech absolutists (a club I frequent). But I have found myself thinking about his questions in the aftermath of two major events involving the cross-border repercussions of speech: the horrible attack on satirical French magazine Charlie Hebdo, and the hacking of Sony Pictures before the release of the sophomoric comedy The Interview.

The crowded theater is a meme in First Amendment law that is often invoked out of context and has been overtaken by subsequent, more expansive free speech rulings. Another First Amendment meme is the marketplace of ideas: we absolutists like to say that all speech should be permitted so that truths can prevail in that aforementioned ideas market. A third important meme the current constitutional test for whether the state can restrict speech is that of imminent lawless action. In a case involving hateful Ku Klux Klan speech in the 1960s, the court held that the government can only forbid speech that is intended to trigger imminent lawless action, and is likely to do so.

All of this would be easier to judge if speech could be contained within tidy territorial boundaries. But the Paris tragedy and Sony hack beg not only the Breyer question of what constitutes the crowded theater today but also a redefinition of the marketplace of ideas and of imminent lawless action. Should we rethink whats acceptable speech because more lawless action can be more imminent in a more interconnected world?

Whats different today is the immediacy of all speech, no matter where it takes place. Several legal scholars argue that perhaps we should rethink the permissibility of releasing offensive material that is bound to trigger a violent reaction. Its getting harder to draw distinctions between uploading something onto YouTube in the privacy of your home and broadcasting that same content halfway around the world. Its a very large crowded theater we operate in.

Back in my absolutist First Amendment club, this is an unsettling line of reasoning. As Americans we are understandably wary of watering down our liberties (including the liberty to offend one another) to conform to some international norm. If we are all going to coexist in one global market or theater that transcends borders, our traditional attitude has been that others will just have to develop thicker skins and relish the same liberties we enjoy. Deal with it, in other words.

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Redefining free speech in our hyperlinked world

First Amendment Rights of Judges in the Spotlight

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The First Amendment rights of judges are a hot topic these days.

Just a few days ago, the U.S. Supreme Court heard arguments on whether states can bar judicial candidates from soliciting campaign donations without violating their speech rights.

Across the coast in California, the states highest court has decided that judges there will no longer be allowed to belong to nonprofit youth organizations that discriminate on the basis of race, sex, sexual orientation or other criteria, effectively barring membership to the Boy Scouts of America.

The group wasnt mentioned specifically by name, but the California rule was proposed last year in response to the Boy Scouts policy of excluding gays from staff and leadership roles. After hearing from scores of judges and lawyers, some of whom fiercely opposed it, the California Supreme Court on Friday voted to adopt the rule, which takes effect next year.

The U.S. Supreme Court case is about the political speech rights of judges, while the California ethics rule deals with limits on free association. But both raise the question of how much First Amendment protection should be granted to judges who have a special duty to be fair and impartial, says Harvard University constitutional scholar Noah Feldmanin acolumn for BloombergView.

Writes Mr. Feldman:

For the moment, the Supreme Court would probably uphold the California ban on judges associating with the Boy Scouts, reasoning that judges are special and that the states interest in controlling their behavior is different from its interest in regulating the Scouts.

Another feature that might conceivably matter is that state judges are also state employees. In last weeks oral argument, the question of state employment arose, with the justices asking whether it made sense for the campaigning activities of sitting state judges to be regulated differently from the campaigning activities of nonincumbent candidates for judicial office.

Yet if the Supreme Court expands the political speech rights of judges this term, it could be the beginning of the end for state laws that limit judges free association. Then we wouldnt be able to rely on the canons of judicial conduct to create the appearance of fairness. We would have to rely instead on vigilance and common sense, and choose judges who are actually fair and actually dont discriminate. Which doesnt sound so bad after all.

A spokesperson for the California Supreme Court didnt have a comment in response to Mr. Feldmans column.

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First Amendment Rights of Judges in the Spotlight

Local First Amendment activist acquitted in trial involving Church Directory at courthouse

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A local man was acquitted by a visiting Franklin County judge Tuesday of criminal mischief in a case that had revolved around different interpretations of the First Amendment. Ultimately, however, the judge rules on another issue.

Eliot Kalman, 69, of Athens was arrested on Oct. 28 after being caught placing stickers advocating constitutional separation between church and state on a Church Directory sign affixed to the front of the Athens County Courthouse. Criminal mischief is a third-degree misdemeanor.

During Kalman's trial Tuesday in Athens County Municipal Court, Dale Crawford, a retired judge from Franklin County, ruled that while Kalman, a former president of the local American Civil Liberties Union chapter, has no constitutional right to deface somebody else's property, he did, technically, have a form of permission to place stickers on the Church Directory.

"The defendant (Kalman) in this circumstance has the privilege because the county Commissioners have not taken that (privilege) away," Crawford said in his final statements. "If the county Commissioners want to limit a part of a county building to a specific use and grant it to specific improvement people, they can do so by resolution."

Crawford ruled to acquit Kalman of the criminal mischief charge before the jury could vote on the case after Kalman's defense submitted a request for a "rule 29 judgment of acquittal," a motion a judge can grant if he agrees that the prosecution's evidence is insufficient. Crawford granted the motion, and Kalman was declared not guilty by the judge.

After the trial, Kalman was elated, if a bit shaken.

"First time I've ever been arrested in my entire life, and it was scary," Kalman said, referencing his Oct. 28 arrest. "I'm relieved that it (the trial) is over. I'm glad that I wasn't found guilty. The nature of a 'directed verdict,' that's what we had... means that they (the prosecution) didn't even come close."

Kalman testified during the trial that he did in fact place the sticker on the glass of the Church Directory on Oct. 28, and his defense acknowledged that he had placed similar stickers on the glass multiple times throughout 2014. His defense also provided photographic evidence of other stickers placed on the glass, most of which, Kalman said, were not his. Kalman throughout the trial maintained that he placed the stickers as a statement about the Directory violating the First Amendment separation of church and state.

However, Judge Crawford said in his judgment that he was not in Athens to decide on the appropriateness of the Church Directory's placement outside of the county Courthouse.

"I'm not here to decide whether that's proper or not proper on the county building," he said. "I'll let some other person take care of that issue. It sounds a little simplistic to me."

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Local First Amendment activist acquitted in trial involving Church Directory at courthouse

Does the First Amendment need a New Deal?

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Lindsay France

Adam Liptak, Supreme Court correspondent for The New York Times, delivers a 2015 Frank Irvine Endowed Lecture (FIELS), "A New Deal for the First Amendment?"

The terrorist attack on the office of Charlie Hebdo, a satirical magazine in Paris, sparked a heated debate on the freedom of speech around the world. In America, this new dialogue was a continuation of a much longer, equally passionate debate on the First Amendment rights, one that has been taking place in the Supreme Court.

Adam Liptak, the Supreme Court correspondent for The New York Times, discussed the First Amendment in A New Deal for the First Amendment? at Cornell Law School Jan. 22.

Liptak began his talk with a 2011 Supreme Court case, Sorrell v. IMS Health Inc., which determined the legality of selling a doctors prescription information. The case was decided using the First Amendment, causing Justice Stephen Breyer to accuse the court of Lochnerism, a reference to the contentious 1905 Lochner v. New York decision based on the amendment. The Lochner case, Liptak explained, is often placed in the anti-canon of Supreme Court cases, along with other notorious decisions such as Dred Scott and Plessy v. Ferguson.

What made the Sorrell and Lochner cases so controversial, Liptak continued, is how the law was interpreted and applied. In Sorrell, prescription information was a form of speech, which could be protected, but it was also an economic activity, which could be regulated. A similar duality existed in Lochner. Reconciling this duality led to the controversy: The state legislatures tried to impose economic regulations and the contradicting court decision was dismissed as judicial activism.

Liptak mentioned another possible consideration in applying the law: If judging is, as he phrased it, weighing competing interests and putting a thumb on the scale in favor of marginalized speech, then should a deciding factor in applying the First Amendment be the relative power of the speaker? Though Liptak did not have an answer to this question, an audience member raised the possibility that a power-based consideration could lead to influential organizations, like major newspapers, being censored.

This brought Liptak to the dangers of applying the First Amendment liberally. I practiced First Amendment law for 14 years, and I drank the Kool-Aid, he said, describing his previous faith in the amendment. Over the years, many important decisions have been made using it, including allowing protestors near funerals and decriminalizing flag burning. However, he added, There is something troubling we should think about: economic regulations being struck down on the basis of free speech.

The Lochner era, which was characterized by such decisions, ended in the 1930s with the New Deal. To end our modern era of First Amendment law, Liptak suggested, a new New Deal is needed.

The lecture was presented by the Law Schools Frank Irvine Endowed Lecture Series.

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Does the First Amendment need a New Deal?

Retaliation: Did college unlawfully terminate faculty member for complaining?

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By Brian J. Kurtz, FordHarrison LLP

Does the First Amendment protect the head of an adjunct faculty union who writes a letter critical of the community college that fired her? Read on to find out.

Robin Meade was an adjunct faculty member at Moraine Valley Community College, a public institution in Palos Hills. She became upset in August 2013 when the college sent her a one-page document that set out her course schedule for the coming term.

The document got Meades attention because the words EMPLOYMENT AGREEMENT were emblazoned across the top, followed by two paragraphs of text stating that it was not a contract for full-time employment and stating further that the college might not employ her at all if there was no need for her services. Ever been so mad you could write a letter? Meade wrote a letter.

Specifically, Meade composed a letter to the League for Innovation in the Community College (LICC), an organization the college was reapplying to for membership. LICC includes 800 member institutions and over 150 corporate partners. The college had asked adjuncts to write to LICC supporting its application. Meades letter declined to do so and instead pulled no punches regarding the reasons she couldnt support the reapplication.

Meade accused the college of treating its adjunct faculty like a disposable resource and a separate, lower class of people. She accused the college of underpaying its adjunct faculty, denying them access to health care, and denying them access to certain courses. Meade said that adjunct faculty taught 60 percent of the colleges course load, but the college devoted most of its teaching resources to full-time faculty.

Meade also accused the college of prohibiting adjuncts from working on an hourly basisas opposed to a per-course basisthus deterring them from spending time tutoring students. On this point, Meade implied that the practice was contributing to the colleges high failure rate in developmental classes.

She dramatically concluded that all of those factors had created a chilling effect which affects adjunct performance and erodes the confidence the idyllic atmosphere and beautiful buildings and grounds strive to project. Meade sent the letter on the letterhead of the colleges adjunct faculty union, the Moraine Valley Adjunct Faculty Organization, of which she was president.

Meade sent her letter to LICC on August 20. Two days later, she received a notice from the college that her services were terminated. The notice referred specifically to her LICC letter and accused her of spouting misrepresentations and falsehoods.

The notice went on to complain that her letter wasnt responsible advocacy on behalf of her union but instead was a personal attack designed to undermine the colleges relationship with LICC. The college followed up the termination notice with a warning that if she was seen on campus, she could be arrested for trespassing. Meade sued the college in federal court, alleging that she was terminated in retaliation for expressing views protected by the First Amendment.

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Retaliation: Did college unlawfully terminate faculty member for complaining?


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