What are the limits on Free Speech?

[turtle]

What is the name of your state (only U.S. law)?

California

Aim: Though the title line is very broad, the question concerns a very specific case, with the aim in mind to find out 1) whether or not a particular expression in and of itself constitutes a crime and 2) if not or unclear, whether a case could be made and how.

Context: I live in Santa Cruz, California, on the campus of UCSC, where a car was firebombed early in the morning, nearly at the same time that a house was firebombed in a neighborhood not far away. The case has fallen under the jurisdiction of the FBI and is being investigated as "domestic terrorism." The two individuals apparently targeted both work at UCSC, both biomedical researchers. Animal rights activists are suspected, though there is no released information at this time.

Earlier in the week, a pamphlet was apparently discovered at a local cafe and reported to the police that is being linked to the case. The details concerning the pamphlet are also unknown in terms of who produced it and why, who turned it in and when they found it and where, and how long if at all it remained in public view. We have only the police report which suggests that the police arrived at the cafe's corner, where an unidentified individual was standing with approximately a dozen handmade pamphlets, saying he was a customer and found them inside the cafe.

Question: Does the pamphlet itself constitute a crime? if so, what sort and why? if not, why not? if not known, what else would have to be determined?

Details: The pamphlet has not been released to the public in full. The facts so far are as follows:

Front cover: language to the effect of "murderers and torturers" as in a WANTED poster.

Back cover: language to the effect of "We know where you work. We know where you live. We will not ever stop until you stop your abuse."

Inside: the names, photos, home addresses, home phone numbers of 13 individuals, most of whom work for UCSC and are scientists (though it has been reported that at least 3 mistakes were found in the information, so not all turned out to be connected to UC science research or animal research for that matter)

I have read about "harm" and about "clear and present danger" and about "imminent illegal activity" and even about "hate speech," but none of these seem to cover the particulars very well so I am puzzled about whether or not this is in fact protected speech and secondarily curious about how a case could be made somehow that argues that it is not protected speech.What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

 

[Ohiogal]

Yes it could be a crime. It may not be protected by freedom of speech. It may actually be more than one crime. More details are necessary. So when were you arrested?

 

[turtle]

Thanks for your response. Is there any way you could elaborate? When you say it could be a crime or even multiple crimes, what are you thinking of?

When you say more is necessary, what do you have in mind? What would be necessary to know, I mean, within reason, given the limits of the situation?

Even if you don't have quite enough information, could you venture a guess about what kind of crime this constitutes and why?

Could you maybe venture a guess as to how the FBI will make a case?

 

[FlyingRon]

Printed material isn't speech. It's the press, but that really doesn't matter.

While publication of opinions is protected, you can't harass, threaten, etc.. any more in written publication than you can to someone's face. A better place to discuss this would be over in the Constitutional law forum.

There are a lot of terrorist threat laws enacted since 9/11 that are on the edge of Constitutionality (not helped by the fact that your President who swore to uphold the same regards it as "just a piece of paper"). That fact won't stop you from being charged and spending a lot of money and personal angst defending the constitutionality.

 

[turtle]

Sorry, I'm not a lawyer obviously or I wouldn't be here, but isn't this forum for criminal law? both federal and state? I am not sure I understand what you are trying to tell me, nor did I realize that there was another section on the Constitution. I am not even sure that I understand the difference. I mean, isn't it a federal offense to violate the Constitution? Or are the laws that were broken something else? I just don't follow.

 

[tranquility]

First amendment issues are very complex. They are further muddled by the current set of laws regarding terrorist threats. While those laws have been challenged, they have generally been upheld as constitutional. To describe why would take more than the space allowed and will never "make sense" without substantial study of each of the elements. The interpretation of the constitution has been made far more difficult from the centuries of court decisions. One cannot simply read the words in the constitution and understand their legal meaning.

Get a book. There are some good ones out there. Or, go to SSRN and search for legal publications. Although I haven't looked, I bet there are some by Eugene Volkh covering the first amendment which would be good. Search for something like "first amendment criminal" without the quotes.

 

[turtle]

Thanks for your response. I do realize that it is complex. I read online about some of the Supreme Court decisions, like Brandenburg, leading to the "test" of "imminent illegal activity," but that would be hard for them to argue because they in fact were prepared for the subsequent attacks. It didn't help but they knew about it and had extra security. So I just don't see how they will attempt to build a case.

 

[quincy]

At its most basic level, the pamphlets are defamatory. Falsely calling an identifiable person a murderer and/or torturer is libel.

Although our Constitution grants us freedoms, and the First Amendment says that "Congress shall make no law. . . abridging the freedom of speech, or of the press. . . ", both the Fifth and the Fourteenth Amendments say that people can be deprived of life, liberty and property through due process of law, and State constitutions say that freedoms of speech and the press can be abused and those who abuse these freedoms held responsible. So, there have always been some limits placed on free speech.

There are other values that take priority over free speech, in other words, and among these are national security, a person's reputation, and consumer protection.

 

[turtle]

But isn't defamation a civil issue? I am more concerned about how the FBI is going to prosecute the case as a federal crime.

I'm getting the impression, at least by reading between the lines, that there is no case? But that seems crazy to me. How could targeting, threatening, and naming people in public not be a criminal offense? Were it basically the same situation but with "Jews" replacing "vivisectors" wouldn't it be clear cut?

 

[Just Blue]

Thanks for your response. Is there any way you could elaborate? When you say it could be a crime or even multiple crimes, what are you thinking of?

When you say more is necessary, what do you have in mind? What would be necessary to know, I mean, within reason, given the limits of the situation?

Even if you don't have quite enough information, could you venture a guess about what kind of crime this constitutes and why?
Could you maybe venture a guess as to how the FBI will make a case?

Terroristic Threats.

 

[turtle]

I get that there are limitations placed on our freedoms. What I am asking is what they will argue is specifically criminal about these pamphlets? And how will they argue it? I don't mean to ask you to mind read or anything, and I also realize that the public at this point doesn't have all the information, but isn't there enough here, just in what is stated above, to say something about what makes this a federal crime? I am sorry to ask again, but I am still not clear about whether or not I have gotten an answer. There seems to be some confusion along that way that I can't quite pinpoint, but I feel misunderstood so please bear with me. This issue is very close to home, literally. My house could have been bombed. Or anyone's right next to me because they did not have correct addresses and bombed the "wrong" house, as if there could be a "right" house to bomb. The neighborhood is crawling with FBI, DOJ, SCPD, AFT, and campus police. I feel like I went to bed one day in sleepy Surf City and woke up the next in Beruit. Please try to help me out a little here. This issue is the most serious incident of domestic terrorism of its kind in the nation's history.

 

[quincy]

Defamation is a civil issue, although Florida, Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia, Washington and Wisconsin still have criminal libel laws. Prosecution under these criminal libel laws is rare, however, and always challenged.

With First Amendment challenges, courts often look to the words of Justice Oliver Wendell Holmes, Jr., and Justice Louis D. Brandeis.

In 1919, Holmes said, ". . . the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether words used are used in such circumstances and are of such a nature as to create a clear and present danger. . " (Schenck v. U.S.)

In 1927, Brandeis said, "To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced." (Whitney v. California)

So, based on the words of these two Justices, there is a clear and present danger presented by the words used in the pamphlets, and there is reasonable ground to fear that evil will result with their publication. The speech can be suppressed for those reasons.

As for charges, as I said, defamation charges could result at a minimum and, as baystategirl said, terrorism charges could result at a maximum. The publishers of those pamphlets will need excellent attorneys, in other words, to defend their rights on free speech grounds.

 

[turtle]

Thanks, that makes it more concrete and direct for me. I see where the confusion is too, though I don't know how to articulate it exactly. I guess I was thinking more along the lines that it would be a crime to abuse, say, freedom of the press (since this is written and published material). I wasn't considering it from the point of view of those trying to defend themselves, but rather those who are trying to prosecute the case successfully.

And I was concerned that they might not be able to establish that the pamphlet was in and of itself a crime because it actually doesn't name an action directly, violent or otherwise, or hint at a time or place or anything specific, nor does it name a group or ideological cause explicitly. It is left vague on purpose so the threat is there, clearly for all to understand, via context (i.e. the language and history of animal rights attacks on researcher), but it is not literally written out on the pamphlet itself in an explicit way.

My understanding was that the "clear and present danger" was supplanted by a subsequent ruling about "imminent illegal activity," but maybe I have mixed it up somehow. They would have trouble I think establishing either, which is worrisome to me. The implications for one thing are unimaginable: that this could happen anytime anywhere and not be prosecuted even though an entire community fears for their lives and is in fact being terrorized regardless of whether or not any bombs actually did go off. Worse still that two did, because the people named now do not know if they are next. And worse even still no one in the whole community knows because so many of the addresses were wrong in the pamphlet. If this isn't terrorism I don't know what is, but the terrorism resides, from at least my understanding, in the fact of the existence of the pamphlet, not in the bombings themselves. What I mean is that, without the pamphlet, the two bombings couldn't be connected to any cause or ideology that was obvious. The researchers both work for UC, but they did not share things that would lead to an obvious group, especially to animal rights because the man on campus does not do animal research. The pamphlets make the connection clear and motivated. That is why I am interested in how the FBI is going to handle them to build their case.

 

[quincy]

Here are some laws you can look at that the pamphlet publishers/fire bombers could be charged under:

Federal explosive laws and use of weapons of mass destruction and civil rights laws:
18 USC 241
18 USC 245
18 USC 844 (d)
18 USC 1716
18 USC 924 (c)
I am sure there are others, but some of these were used in the Ted Kascinski bombings and the Oklahoma City bombings to convict.

Bombings and fire bombings and other explosives offenses are usually crimes that fall under a state's arson statutes, and prosecutions of threats are usually handled under state laws, as are murder and assault crimes.

California laws that could potentially apply:
The Ralph Civil Rights Act - Cal. Civil Code section 51.7
The Bane Civil Rights Act - Cal. Civil Code section 52.1
California Penal Code section 422.7
California Penal Code section 11411

And, again, you would have the, obviously, more minor civil offenses involving defamation.

 

[turtle]

While they are calling it arson and attempted murder respectively, it is falling under federal not state jurisdiction. The FBI is now solely in charge. I suppose that has to do with the issue of "domestic terrorism" but I could be wrong.