When Speech Is Not Free: Undermining The First Amendment

Woman cryingThe First Amendment: “Congress shall make no law . . . abridging the freedom of speech.” 

Congress has passed a law 18 USC s. 1001 that reads: “whoever . . . knowingly and willfully . . . makes any materially false . . . statement or representation”  in any matter within the jurisdiction of the executive, legislative or judicial branches can go to prison for five years.

So the First Amendment should read:  “Congress shall make no law . . . abridging the freedom of speech but it can punish lying to a federal official.”

Congress has passed a law 18 USC s. 1001 that reads: Whoever . . . corruptly persuades another person, or attempts to do so, . . .  with intent to . . .  hinder, delay, or prevent the communication to a law enforcement officer” can go to prison for twenty years.

So the First Amendment should read:  “Congress shall make no law . . . abridging the freedom of speech but it can punish anyone attempting to corruptly talk someone into delaying a communication with a law enforcement officer.”

As I see it, those are laws that abridge free speech especially as we see them now being applied in the courts. What is particularly obnoxious about them is that the lie doesn’t have to affect anything nor does the persuasion have to have caused a wrong. It is just doing these things without any real detriment coming about makes it a crime.

The FBI was investigating a case where a person said he had been told by the FBI he could commit certain crimes. At issue was where a tape cassette he produced came from. An FBI agent called a retired FBI agent John and asked him if he had been in contact with Lawyer X. The retired agent said no. Telephone records showed calls between John and Lawyer X. He was convicted on that “no” of lying.

Then we have the Flaherty case where the FBI put a person who had contacted it up to calling the lawyer and asking him what he should do with a message from the FBI to call it. The lawyer to him not to do it. He is charged with telling the person who was already in touch with the FBI with hindering or delaying contact with it.

Now we have the real scary stuff. There’s a case involving a guy named Ross William Ulbricht  who was the creator of Silk Road which was an internet site for selling drugs. Giving credit where it is due, the FBI did a fantastic job tracking him down. Ulbricht was convicted of various charges and sentenced to life in prison without the possibility of parole.

Some people were upset about the sentence meted out by Judge Katherine Forrest who by the way seems to be a highly qualified judge.   They expressed their feelings on the comment section of the libertarian media site Reason.com.  One wrote: “It’s judges like these that should be taken out back and shot,”  To which someone responded: “It’s judges like these that will be taken out back and shot.”  Someone else added: “Why do it out back? Shoot them out front, on the steps of the courthouse.” Another said:  Why waste the ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.”

The Department of Justice has issued a grand jury subpoena to Reason.com seeking to find out the identity of those people and others who commented like that. It cites a section of the U.S. criminal code that makes it a felony to mail communications threatening federal judges which is punishable by 10 years in prison. It also contained the statement: “The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party.” The government likes to operate in secrecy like a thief in the night. Fortunately that request was ignored; I suppose there will soon be a prison penalty for such action in the future.

The stupid statements about the judge were clearly not threats. They were hyperbolic statements by people upset by the verdict. Now those people will have their identities revealed, be questioned by FBI agents (hope they don’t lie), perhaps dragged before a grand jury, or even charged with the ten year felony.

I wrote previously the federals take themselves very seriously. They have the power to harass and destroy people for minor indiscretions. We’ve seen how they make things into crimes even setting traps for people to walk into. These are slow but sure steps in suppressing our right to free speech which includes stupid speech.

Keep in mind the Soviet Union had a bill of rights every bit as good as ours. The problem was it was only on paper and no one enforced it. Ours is slowly being undermined by the misnamed Department of Justice and the judges, many who have come from that place, who refuse to enforce the First Amendment as it is written.

As I’ve often said the law is what the judges say it is. The judges have said those restrictions on free speech do not abridge free speech. If they say laws against stupid comments against a judge does not abridge free speech that also will be our fate. It’s a slippery slope. If they say free speech does not include speech against actions of our government then that too will be the law. The slope is becoming more and more slippery.




14 replies on “When Speech Is Not Free: Undermining The First Amendment”

  1. curious, was the case involving ‘retired FBI Agent John” any way connected with the W. Bulger case(s). I would hope that the Bureau would not go after a retired SA unless there was good reason and knew he would lie. XSA Rico comes to mind. Never heard of any 1001 prosecutions in the past. Has the US Attorney found a previously rarely used tool.Wonder if this is unique to the US Attny. in MA? Late thought, is John, John Connolly?

    1. Niall:

      John is John Connolly. He was the FBI agent who handled Whitey, that is it was believed that Whitey was his informant. The Bureau will go after anyone who has the potential to embarrass it. The Bureau did not go after Rico but the state authorities in Tulsa, Oklahoma did. If you heard of Martha Stewart you would know 1001 prosecutions are used when the case that the FBI wanted to bring falls through the cracks.

  2. Slight correction: The identity of Dred Pirate Roberts, the creator of Silk Road, was actually discovered by an investigation started by Homeland Security Investigations, formerly known as ICE. As you know, one of the things the FBI excels in is taking credit for other people’s work!

    1. Declan:

      My mistake. I should know better than reading and believing the stories put out by the media when it comes to the FBI a gents. They are getting the credit for solving the case.

  3. If it is “a felony to mail communications threatening [a] federal judge”, do you not have to prove that the communication was transmitted via the U.S. Post Office? I was unaware that comments such as the one that i am now writing involved the U.S. Post Office in any manner. If someone other than the original commenter prints out the comment and sends it to another via the U.S. Post Office, is it then a felony?

    1. I think you are right that the threat to the judge has to be by the mails. I took that from the article in the paper that the government was considering it. That would have been under 18 U.S.C.876 which is probably not relevant here. The grand jury subpoenas must have issued under 18 U.S.C. 875 which prohibits a threat using interstate commerce which would include the internet. I would have difficulty believing if the comments were downloaded and then mailed that the person who used the internet would have any liability for that.

      1. If a law “prohibits a threat using interstate commerce”, then you would need to know precisely how the message was routed. Internet messages are relayed as packets of data from computer to computer and may not necessarily cross a state line. On the other hand, a message packet could be relayed through any number of computers before reaching the destination, even when the source and destination computers are geographically close. You would at least need to establish that the computer used for origination of the message and the destination computer were in two different states.

        Can you say “over reach”?

        1. Ed:

          I’d guess that is what they would want to look at when they drag the kids (I assume from the comments they are kids) into court. They hope to find the kids live in state X and the communication went to state Y. You hit the nail on the head with “over reach.”

  4. Hello Matt, Great new format, does the red highlighting have any thing to do with Skip Adam’s report card ?

    1. JRC:

      No – the red on his card (and mine) was quite bright and couldn’t be missed.

    1. Douglas:

      You have to understand what we would consider a lie the FBI would not feel the same way about it. Anything that it does or says in the pursuit of its idea of justice is the truth. All I have to do is to point to Judge Mark Wolf who the FBI wanted to interview. He refused to do it unless he could review what they had written down about him. Why didn’t he trust them after all his years on the federal bench? Another example is in the book by Ralph Ranelli who shows clearly examples where the FBI lie to cover up what is going on within the agency. Then there is government witness John Morris who was caught lying several times by the FBI investigators. As for the DOJ, there are numerous cases where it said it turned over to the other side all the evidence when it didn’t. One DOJ attorney in Boston was almost disbarred for doing it but the judges in the building where he works saved him. As I said, they think they are doing God’s work so anything done in that respect is all right.

  5. Agreed, Matt. These folks were just venting. I deeply doubt a real killer would make his intentions known online.

    1. Dan:

      I have no doubt that it was all bravado from a keyboard with no intent to do anything further. I suggest to think otherwise is indicative of people looking to intimidate others into stopping any criticism or somehow making venting illegal.

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