Below is my column in The Hill on the re-arrest of an Iowa man who took part in the January 6th riot. The case raises a growing concern over the way courts are weighing the political views of defendants a matter for bail and sentencing. While raising such concerns inevitably brings out an Internet mob and accusations of being a “fellow traveler,” free speech often demands the protection of the least popular individuals in our society. Many of those who long denounced the censorship of suspected Communists in the 1950s now support censorship or blacklisting of individuals on the right. Others remain conspicuously silent in the face of speech sanctions or censorship. The Jensen case reflects a new sense of license in weighing the political views of defendants in determining whether to release or to jail them.
Here is the column:
In “A Man for All Seasons,” Sir Thomas More confronts Richard Rich, a former protege who lied in court to convict him in exchange for being named attorney general of Wales. As Rich passes by, More asks: “For Wales? Why, Richard, it profits a man nothing to give his soul for the whole world … but for Wales!”
The scene came to mind after Doug Jensen, one of the Jan. 6 rioters, was rearrested for listening to an online speech by Trump supporter and pillow magnate Mike Lindell. Jensen agreed not to use the internet as a condition of bail … but to violate those terms for the MyPillow Guy?
I have long been a vocal critic of Lindell and all those who rioted in Congress. Yet the Jensen case raises a concern about the conditions placed on bail by courts and the message that “rehabilitation” or remorse can be convincingly shown only by denouncing past political viewpoints or association.
After the riot, the Justice Department opposed bail for many defendants. The FBI found no evidence of a broad conspiracy of insurrection, however, and most of the roughly 570 people arrested have been charged only with forms of trespassing or parading. Only 40 face conspiracy charges related to planning to do violence or property destruction. Jensen was one of the best-known figures, pictured standing before police with his arms spread wide wearing a QAnon T-shirt emblazoned with an eagle.
He was charged with seven counts, largely for trespassing, parading or unlawfully entering the building; just one count alleges “assaulting, resisting, opposing, impeding, intimidating, or interfering” with officers. Jensen did not appear to be armed and was shown moving through the halls, verbally confronting officers.
Like many of the arrested, Jensen had to fight for bail for six months before a judge agreed to release him pending trial. In securing bail on July 13, Jensen assured U.S. District Court Judge Timothy Kelly that he no longer believed in QAnon and was deceived by those who questioned the election. Kelly agreed, but only if Jensen stayed away from internet or cellphone access. Two weeks later, a court officer reportedly found Kelly in his garage secretly listening to Lindell.
According to the Washington Post, Judge Kelly initially was not inclined to release Jensen because “he wanted to be part of a revolution.” Kelly said it was “a close question” but decided to release Jensen because the accused man renounced his prior political views and said he was deceived by “a pack of lies.”
That scene is being repeated across these cases, as defendants are told to renounce their prior political association or, like Jensen, pledge to seek “therapy.”
Let’s be clear on a couple of points: Jensen deserved to be charged and deserves to go to jail for participating in a riot in the Capitol — and he clearly broke the conditions of this bail.
The concern, however, is that courts increasingly demand political reform as a prerequisite for bail or more favorable sentencing. The “close call” for Judge Kelly was resolved by Jensen denouncing those, such as former President Trump, who accused Democrats of stealing the 2020 presidential election.
Most of us view QAnon as a bizarre group of conspiracy theorists, one of the most active on the internet on either the left or the right. However, it is a bit unnerving to hear judges asking defendants if they are or have ever been a QAnon member. Kelly made clear that, if Jensen did not renounce the views of figures like Lindell and Trump, he would be left to wallow in jail.
We have seen this before. In the 1950s, liberal writers, unionists and others were pulled before Congress to state whether they were or ever had been communists. The very status of “fellow traveler” was enough to be blacklisted, investigated, even arrested. When Sen. Joe McCarthy waived his list of “known communists,” he was identifying not just “card-carrying members” but those “loyal to the Communist Party.”
The troubling aspect of Kelly’s bail decision is the message that if you believe a “pack of lies,” you should not be granted freedom pending trial. Cutting Jensen off of the internet was directly linked to preventing him from listening to such lies.
For civil libertarians, the concern should be that such conditions can become a type of thought-crime. We’ve already seen such cases abroad, including the United Kingdom where, in May, Nicholas Brock, 52, was arrested for what a court called his “toxic ideology” of racist and pro-Nazi views. Those views not only led to his arrest but drove his sentencing. Judge Peter Lodder declared: “I do not sentence you for your political views, but the extremity of those views informs the assessment of dangerousness.” Lodder denounced Brock — who did not commit any crime other than possessing hateful material or holding hateful views — as a danger to society due to his being a “right-wing extremist” and his “enthusiasm for this repulsive and toxic ideology.”
It is risky to raise concerns over cases like Brock’s or Jensen’s in this age of rage. To even voice such free-speech concerns is to invite an internet mob to accuse you of being a QAnon defender or an insurrectionist. Yet, governments always start to limit speech with the least popular, most-hated among us.
The focus of the Jan. 6 cases is the riot itself. I would have the same objection to courts demanding that arrested Black Lives Matter (BLM) or antifa followers renounce their views as a condition of bail. Hundreds were arrested over the past year in violent rioting, including pre-planned attacks to take over or torch city halls, police stations and courthouses. It would be outrageous for courts to demand that BLM or antifa supporters not listen to these political movements or related political figures. They were arrested for arson and rioting, not holding “toxic ideologies.” For that reason, while I have long denounced antifa, I opposed the use of sedition charges against them in defense of free-speech rights that they would deny to others.
Even Jensen’s lawyer called his interest in right-wing sites an “addiction.” However, it shows the futility of trying to coerce people to give up their political viewpoints. Germany has outlawed Nazi symbols and material since World War II, but that has done little to quell the neo-Nazi movement. The only solution to bad speech remains better speech, not censorship and coercion.
Doug Jensen has been cut off from the MyPillow Guy — but that hardly makes me sleep better at night.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.