There is a troubling conviction in Alexandria, Virginia where Chad Dixon has been sentenced to eight months in jail for training people how to pass top-secret security polygraphs. The Administration prosecuted Dixon, a former Little League coach, obstruction and wire fraud for teaching between 70 and 100 people how to get past lie detector tests. He was paid $1000 a day and the Justice Department labelled him a “master of deceit.” However, if other people are actually giving false information or gaming the system, the question is whether this should be treated as a protected form of speech. It raises many of the same issues as the prosecution of people who encourage or advice others on how to commit suicide. [The picture is a file image of a test and not associated with Dixon or these underlying charges]

Polygraphs are not allowed into federal trial due to the view that they are not reliable as forms of evidence and too prejudicial for a jury. I have handled a number of polygraph cases and it has been very troubling to see how the federal government uses the tests to intimidate people and often misrepresents the results to try to get people to confess to crimes. In one case, the FBI polygrapher admitted that he was using the tests as an interrogation technique. The conditions for the tests were entirely improper and the results were equally unreliable but the subject did not know that.

Dixon appears to have done a brisk business with government job applicants seeking jobs with clearances. The prosecutors argued that his clients include child molesters, intelligence employees and law-enforcement applicants.

The sentence was imposed by U.S. District Judge Liam O’Grady (who I briefly served with as co-counsel in the Nicholson espionage case before he joined the bench). The Justice Department wanted two years in prison after Dixon, 34, pleaded guilty to charges of obstruction and wire fraud. Notably, O’Grady acknowledged that the case fell into “gray areas” of constitutional law and noted that “there’s nothing unlawful about maybe 95 percent of the business he conducted.”

I am troubled by the prosecution. This seems to me to be speech protected under the first amendment. People came to Dixon for advice on how to face these tests. Those individuals can always be prosecuted under provisions like Section 1001 covering “whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government . . . makes any materially false, fictitious, or fraudulent statement or representation.” However, Dixon did not make false statements to the government; he told people what to expect and how they could avoid disclosures or negative results. They then decided to take that information and use it to try to fool the tests.

In a federal sting, Dixon advised one undercover agent posing as the brother of a violent Mexican drug trafficker to withhold details during a polygraph for a U.S. Customs and Border Protection job. Even if he counseled to withhold information, he was not the one who committed the act of fraud or any false statement.

I respect O’Grady’s sensitivity toward the constitutional issues, but the implications of this case are sweeping and disturbing. Under this theory, there are a host of websites and public interest organizations that could be accused of fraud or obstruction in advising illegal immigrants, whistleblowers, and others in their dealings with the government. It creates a classic slippery slope for criminalized speech. This Administration failed to criminalize speech in the “Stolen Valor” cases but now appears to be pursuing an entirely new angle for such criminalization. In United States v. Alvarez, No. 11-210, the Court held 6-3 that it is unconstitutional to criminalize lies — in that case lying about receiving military decorations or medals. In that opinion, the Court noted:

Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in thisCourt’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

The same chilling effect is created in the Dixon prosecution in my view.

By the way, while the Holder Justice Department has no tolerance for people who encourage others to lie on a lie detector test, it is perfectly find with an official who virtually admits to committing perjury before Congress. In the case of National Intelligence Chief John Clapper, the man who admitted to lying before Congress on surveillance programs , the Obama Administration is not even interested in opening an investigation. After all, he just lied to the American people and to Congress.

 Source: Seattle Times