There is a disturbing threat from an Obama Administration official that the Administration could prosecute those who “spread false information or inflammatory statements about the perpetrators” in an alleged sexual assault by juvenile Muslim migrants in Idaho. The remarks of United States Attorney Wendy J. Olson has triggered concerns over the criminalization of speech.
The controversy began when two boys from Sudan were arrested on June 17 for allegedly sexually assaulting a 5-year-old special-needs girl in the laundry room of the Fawnbrook Apartments in Twin Falls, Idaho.
Olson then issued the following press release in the state case:
“BOISE – The United States Attorney’s Office extends its support to the five-year-old victim of assault, and her family, at the Fawnbrook Apartments in Twin Falls.
The United States Attorney’s Office further encourages community members in Twin Falls and throughout Idaho to remain calm and supportive, to pay close attention to the facts that have been released by law enforcement and the prosecuting attorney, and to avoid spreading false rumors and inaccuracies.
Grant Loebs is an experienced prosecutor, and Chief Craig Kingsbury is an experienced law enforcement officer. They are moving fairly and thoughtfully in this case. As Mr. Loebs and Chief Kingsbury informed the public, the subjects in this case are juveniles, ages 14, 10 and 7. The criminal justice system, whether at the state or federal level, requires that juveniles be afforded a specific process with significant restrictions on the information that can be released. The fact that the subjects are juveniles in no way lessens the harm to or impact on the victim and her family.”
That part is not particularly notable. Indeed, it is most striking in how little it actually says. However, Olson then added:
“The spread of false information or inflammatory or threatening statements about the perpetrators or the crime itself reduces public safety and may violate federal law. We have seen time and again that the spread of falsehoods about refugees divides our communities. I urge all citizens and residents to allow Mr. Loebs and Chief Kingsbury and their teams to do their jobs.”
Really? Spreading inflammatory or false information “may violate federal law.” Which law would that be and who will not stand in judgment of what is inflammatory and what is false?
This follows the comments by Attorney General Loretta Lynch after the San Bernardino massacre that she would take “aggressive action” to prosecute “anti-Muslim” rhetoric that “edges toward violence.”
I have previously been highly critical of the trend toward the criminalizing of speech in the West. We have previously discussed the alarming rollback on free speech rights in the West, particularly in France (here and here and here and here and here and here) and England ( here and here and here and here and here and here and here and here and here and here). Much of this trend is tied to the expansion of hate speech and non-discrimination laws. We have seen comedians targeted with such court orders under this expanding and worrisome trend. (here and here).
This concern was heightened during the first term of the Obama Administration over the support of the criminalization of anti-religious speech. Much of this writing has focused on the effort of the Obama Administration to reach an accommodation with allies like Egypt and Pakistan to develop a standard for criminalizing anti-religious speech. We have discussed the rise of anti-blasphemy laws around the world, including the increase in prosecutions in the West and the support of the Obama Administration for the prosecution of some anti-religious speech under the controversial Brandenburg standard.
Olson is actually a former adjunct professor at George Washington University. After clerking, she served as a trial attorney and later Deputy Director of the National Church Arson Task Force in the United States Department of Justice Civil Rights Division. Olson joined the Office of the United States Attorney for the District of Idaho in 1997.
I can understand the concern over false information in such cases that inflame public opinion. Indeed, early reports of Syrian refugees were incorrect. While this is a state case and would not ordinarily involve the Justice Department, the Obama Administration has been highly proactive in the intervention of such cases. However, the inclination of both Lynch and Olson to threaten speech is highly disturbing. Such threats are intended to chill speech and deter people who may say things that the government finds offensive or unacceptable. The sweeping character of these comments belies the absence of authority to actually criminalize the speech of those commenting on these crimes. As public officials sworn to uphold our Constitution, such threats are in my view abusive and highly troubling.
What do you think?