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?
Slippery slope!
Steve,
Good grief, seems like the Commerce Clause gets used for everything!
Thanks for clarifying.
Prairie Rose – to say that the Commerce Clause has been used over broadly is an understatement.
On a brighter note – maybe this ruling can be used to prosecute the Clinton Foundation? Or does it only apply to little people?
Don,
I really appreciate your taking time to break it down. So my understanding is this could curtail donations to organizations because people would be scared if someone the monies were diverted to terrorist groups they could be prosecuted?
There are so many fine organizations, but as I have limited means I could only choose one to financially support – Doctors without Borders – maybe I should reconsider =)
Also, thanks for the reminder that ” it is the executive branch that designates the organizations as being “terrorist”, not Congress.” I agree that that “is also a major problem.” The organizations so designated can challenge the designation in court, but the donors can’t do that (!!!!!!!).
The noose tightens, but still we soldier on.
Autumn
I’m sorry I don’t have time to provide a detailed explanation of why that decision is so bad. It is very difficult to read and to understand for several reasons. So explaining the opinion in a way that is accurate takes a lot of time, which I don’t have right now.
Oversimplified, the opinion says that you can be convicted criminally if you provide certain types of assistance to organizations that are designated by the government as terrorist organizations, even though your assistance is provided to the organization for benign purposes, such as to help them assist refugees, etc.
“Mere membership” in the organization won’t get you convicted. But if you donate money to them, even though you designate the funds be applied to refugee assistance or the like, you have committed a crime.
You can say “I agree with their goals” but you can’t act “in concert” with them. Whatever that means.
The line drawn between legal and criminal conduct is drawn in such a way as to completely chill the exercise of legitimate First Amendment rights. You can find the opinion via Google.
Keep in mind that it is the executive branch that designates the organizations as being “terrorist”, not Congress. That is also a major problem in my book. The organizations so designated can challenge the designation in court, but the donors can’t do that.
Squeeky, thanks so much for sharing this. I look forward to watching it.
@Autumn
You would probably like Pillar of Fire by Ray Bradbury. It was originally a short story, and he later turned it into a play. Good luck finding the story. It is is Boucher’s Treasury of Science Fiction two volume set which you can find on Amazon. ( I stole my father’s copy. 🙂 )
Anyway, here is the play:
Squeeky Fromm
Girl Reporter
PrairieRose – Fahrenheit 451- the novel and the marvelous film adaptation is firmly ingrained in my heart and psyche – many people view Bradbury’s book as dystopian — which to some degree it is — but I see as proof that no matter what happens there will always be a group of people who will defy the system/conventional wisdom whatever and preserve the best that humanity offers. I watch the film every 2 years or so. Thanks for the reminder — I need to watch it again and introduce others to it. Dear Montag…
Autumn,
Great comic about Huxley and Orwell. Will have to print it. Fahrenheit 451 blends those concerns nicely.
@RosieLenses
Oh, maybe you are right, and I am wrong??? Assuming you are white, can you help me out??? Do some background work for me. If you have kids or grandkids, put them into an inner city predominantly black school for a few years. Tell me how it works out for them. Plus, maybe you can go and get you a little place to live in South Chicago. I think the property there is pretty low priced Be sure to take a nice vehicle with you!
Put on a nice summer frock, and walk out in the neighborhood at night and mingle with the residents therein! If your home there has security bars and windows, just get rid of them. That is sooo demeaning to poor pitiful black people. Be sure to put a “I Hate Guns!” sign in your front yard, too!
If everything works out OK for and your family, then get back with me. This is a really good thing to do. I promise I am not trying to trick you or anything. Honest Injun!
Squeeky Fromm
Girl Reporter
Darren and Steve,
“further question as to the need for federal involvement in the matter.”
Is the Federal government involved because the Federal government approved the refugees coming here? Are any crimes caused by refugees technically part of Federal jurisdiction due to their status as refugees?
Prairie Rose: I can’t answer either of those questions. They aren’t within my limited area of knowledge.
As for a juvenile criminal prosecution, however, that’s traditionally been a state matter, so they shouldn’t “make a federal case out of it” as the saying goes. Apparently, that’s not what this US Attorney was doing. She was warning against actual federal crimes.
Unfortunately, most federal criminal law arises (I’d guess) through the federal Constitution’s Commerce Clause as legislative authority. It’s a stretch at best to see how a lot of local crime can get to the federal level that way.
The pot plan Ms. Raich grew in her back yard to comfort a host of physical ailments including back deformation (if I recall correctly) becomes a federal crime that way. Likewise, transporting one’s own child across a state line in violation of a state-court order is a criminal offense subject to federal prosecution under the Congress’s Parental Kidnapping Prevention Act that way, and until 2013 when it was struck down as violating due process, Congress compelled states to follow its definition of marriage under the Defense of Marriage Act that way. All of this is rationalized as reasonable regulation under authority of Congress to enact laws under the following test laid out by the SCOTUS: any single act which, in its aggregate (meaning were every individual to commit the same act at the same time), would substantially affect interstate commerce gives Congress authority to enact reasonable legislation using the Commerce Clause.
I don’t see how a pot plant substantially affects interstate commerce. I don’t see how taking your child across a state line in violation of a local court order substantially-affects interstate commerce, and I don’t see how a congressional definition of marriage substantially-affected interstate commerce (although it certainly affects federal tax revenue and local estate planning and inheritance, bot of which are state law issues traditionally).
So, suffice it to say that regarding refugee criminal acts or the regulation of acts of those abusing refugees, Congress could certainly make the case under the current SCOTUS test for congressional authority under the Commerce Clause to enact any such law, and it’d be enforceable so long as it doesn’t violate any of the constitutional amendments.