Category Archives: First Amendment

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. [UPDATE: The plea is not under seal; it's here, via Free Barrett Brown.] 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. [UPDATE: More stipulated facts are here.] 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.

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

James Madison and The First Amendment
James Madison and the First Amendment by Jeffry Morrison, Ph.D., Academic Director of the James Madison Memorial Fellowship Foundation, Alexandria, Virginia.

By: MadisonFoundation

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James Madison and The First Amendment - Video

Ben Shapiro: The First Amendment is Dead
The first amendment is dead; long live the reign of sensitivity. Ben Shapiro explores how Americans have forfeited their fundamental rights in the name of political correctness.

By: TruthRevoltOriginals

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Ben Shapiro: The First Amendment is Dead - Video

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 Interviews
Analyzing emotions towards the first amendment.

By: Shannonstamp22

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First Amendment Interviews - Video

The college argued among other things that it could (indeed must) exclude the anti-gay message precisely because of its viewpoint: the message, the college reasoned (Lela v. Board of Trustees (N.D. Ill. Jan. 27, 2015)),

is in direct conflict with and disruptive of the Colleges mission to uphold and adhere to the legal requirements for maintaining a non-discriminatory educational enforcement, free of unlawful hostility.

This is the standard rationale used in many campus speech codes aimed at restricting supposed hate speech. But the federal district court rejected the colleges position, and concluded that there was a high likelihood that exclusion of the leaflets violated the First Amendment; indeed, the judges reasoning shows that he was persuaded that the First Amendment was actually violated. Heres a summary of the facts (some paragraph breaks added):

Plaintiffs contend that on or about January 16, 2014, plaintiff [Wayne] Lela contacted WCC [Waubonsee Community College] requesting to distribute flyers on the schools Sugar Grove campus. Lela was referred to WCC employee Debby Wilhelmi, who asked to see copies of the leaflets plaintiffs intended to distribute.

Plaintiffs provided Wilhelmi with two flyers: The Uncensored Truth About Homosexuality; and Gay Activism and Freedom of Speech and Religion. Both flyers promote an anti-homosexuality message. Both flyers promote an anti-homosexuality message. The flyers were sponsored by Heterosexuals Organized for a Moral Environment (H.O.M.E.), an organization founded by Lela.

On January 21, 2014, Lela received a letter from WCCs Executive Vice President of Finance and Operations, David Quillen, denying Lelas request to distribute flyers at the college. Quillens letter stated that WCC is not an open public forum and that [t]he college consistently limits campus activities to events that are not disruptive of the colleges educational mission.

The letter also [stated that the colleges] Facilities Policy provides that [c]ollege facilities may be made available to college and non-college sponsored programs, provided the use does not interfere or conflict with the normal operations or educational programs of the college; the use is consistent with the philosophy, goals and mission of the college; and the use conforms to federal, state, local laws and ordinances. The schools Solicitation Policy states that any type of solicitation, including but not limited to, commercial, charitable, political, using college buildings, equipment, services or grounds is prohibited unless there is written approval from the president or a designated representative of the president.

[In response to a letter from plaintiffs lawyer (at the Rutherford Institute), the Boards lawyer wrote] that H.O.M.E. will not be granted access to utilize campus property to pass out solicitation flyers because, pursuant to the schools policy, solicitation of any kind is prohibited on campus. The letter also explained that H.O.M.E.s message is in direct conflict with and disruptive of the Colleges mission to uphold and adhere to the legal requirements for maintaining a non-discriminatory educational environment, free of unlawful hostility.

Heres the courts legal analysis, which strikes me as generally quite right. First, the court essentially concludes that the exclusion was viewpoint-based, and that such a viewpoint-based exclusion from a public college campus is unconstitutional:

It is undisputed that WCC permits outside groups, including four-year colleges, to engage in speech activities on its campus. While this does not make the college an open public forum, it does require that WCC not discriminate against outside groups based on the content of their speech. See, e.g., Gilles v. Blanchard, 477 F.3d 466, 470 (7th Cir.2007) ( a university that decide[s] to permit its open spaces to be used by some outsiders [can]not exclude others just because it disapprove[s] of their message[]).

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Volokh Conspiracy: Court rejects colleges attempt to exclude anti-gay leafleting

The Making Of The Twenty First Amendment Part 2
Think. Create. Inspire. Relax. Become.

By: LPTrax

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The Making Of The Twenty First Amendment Part 2 - Video

Journalism First Amendment Project

By: MaryL224

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Journalism First Amendment Project - Video

1st Amendment Interview
Friends Discuss the First Amendment.

By: KeeganTurnbough

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1st Amendment Interview - Video

A local man was acquitted by a visiting Franklin County judge Tuesday of criminal mischief in a case that revolved around different interpretations of the First Amendment.

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 deface 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 his defense submitted a request for a "rule 29 judgment of acquittal,"a motion a judge can make if evidence on the part of the prosecution is insufficient to sustain prosecution of the case. 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 corroborated 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 being a violation of 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."

According to testimony during the trial, the local religious group, Athens Christian Education Committee, maintains the Church Directory sign outside the Athens County Courthouse. Rita Snider, a member of ACEC who was called as a witness by city prosecutors, testified about her organization's perceived responsibilities in regard to the Church Directory, which lists numerous local churches as well as Hillel at Ohio University, a Jewish religious entity.

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