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Using the First Amendment Against the Criminalization of Free Expression

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By Jon Katz

Beware when a judge sees the First Amendment’s free speech clause as a hindrance to judicial administration, perhaps emphasizing that the First Amendment is not absolute and does not protect the right to cry “fire” in a crowded theater. (As it turns out, a Supreme Court dissenter first introduced the fire-in-a-crowded-theater phrase. Bridges v. State of Cal., 314 U.S. 252, 296 (1941).) (Correction: Thanks to a colleague for advising that the fire-shouting phrase started in the following majority opinion by Justice Holmes: Schenk v. U.S, 249 U.S. 47 (1918).)

Negative judicial reactions to the First Amendment may be imperfectly akin to negative judicial reactions to Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), both of which substantially expand criminal defendants’ Sixth Amendment Confrontation Clause protections. Both Melendez-Diaz and Supreme Court First Amendment jurisprudence probably strike many judges as individual liberty gone too far, with First Amendment jurisprudence protecting flag burning, KKK demonstrations, and non-obscene sexually explicit images.

At least judges can catch up to speed on the state of the Confrontation Clause merely by reading Melendez-Diaz and Bullcoming and the manageable number of lower court appellate opinions interpreting those recent decisions. First Amendment free expression jurisprudence, on the other hand, is a morass of balancing tests that depend on a case’s factual allegations and that arise from decades-old tugs-of-war between the likes of Justices Black and Douglas advocating for particularly robust First Amendment protection[1] and Justice Scalia advocating for a much narrower reading of the amendment[2], with plenty of justices in between. Trial judges generally do not have the time to be sufficiently up-to-speed in advance on First Amendment jurisprudence, leaving litigating attorneys to synthesize the applicable First Amendment law to them, both credibly and persuasively.

Many prosecutions strike at free expression, with the First Amendment often ready at the rescue. The best way to be armed with the First Amendment in criminal cases is to know both its civil and criminal jurisprudence, as the civil side can often get intertwined with the criminal side, including civil and criminal libel laws[3], both civil and criminal laws geared to hound strip clubs[4] and adult video stores[5] [6], and criminal laws applying to demonstrators who have no demonstration permits[7] or who are arrested for acting disorderly. The First Amendment Lawyers Association, https://www.firstamendmentlawyers.org/, is the best lawyers organization for staying on top of using the First Amendment as a strong weapon for civil liberties.

First Amendment defenses apply for defending such criminal cases as obscenity (Miller v. California, 413 U.S. 15 (1973)), child pornography (Ashcroft v. Free. Speech Coalition, 535 U.S. 234 (2002)), soliciting minors for sexual activity (see Ashcroft v. FSC, supra, for arguments on statutory vagueness and overbreadth), disorderly conduct (Chaplinsky v. New Hampshire, 315 U.S. 572 (1942) and Diehl v. Md. 294 Md. 466, 451 A.2d 115 (1982) (protecting the defendant’s First Amendment right to say “fuck you” to a police officer)), phone harassment (U.S. v. Cassidy, , RWT 11-091, ___ F.Supp. 2d ___ (D.Md. Dec. 15, 2011) (discussed infra) (Titus, J.), and stalking (Cassidy, id.).

First Amendment defenses also apply against prosecutions for cross burning (R.A.V. v. St. Paul, 505 U.S. 377 (1992)), providing non-obscene erotic material to minors (Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997)), providing violent video games to minors (Brown v. Entertainment Merchants Ass’n, 131 S.Ct. 2729 (2011)), videotaping animal cruelty (United States v. Stevens, 130 S.Ct. 1577 (2010)), and sending email spam (Jaynes v. Virginia, 276 Va. 443, 666 S.E.2d 303 (2008)).

As the Internet continues to dominate as a communications medium, prosecutions involving Internet use will increase, including obscenity, child pornography, soliciting minors for sexual activity, online copyright infringement, email spam, online gambling, alleged terroristic communications, stalking and harassment.

Recently, Maryland federal trial judge Roger Titus provided an excellent overview of the First Amendment caselaw applying to online harassment and stalking prosecutions in his order dismissing such a prosecution in U.S. v. Cassidy, ___ F.Supp.2d ___ (D.Md. Dec. 15, 2011) (see the opinion and other key pleadings.)

Cassidy was prosecuted under 18 U.S.C. § 2261A(2)(A), which provides that:

Whoever … (2) with the intent… (A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States …uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B) shall be punished [up to five years in prison and/or by a fine].

§ 2261A(2)(A) (emphasis added).

Defendant William Lawrence Cassidy was accused of making such disturbing online blog and Twitter threats to Poolesvile, Maryland, Buddhist religious leader Alyce Zeoli (named A.Z. in the indictment, and known as Jetsunma to her followers) as the following: (1) want it to all be over soon sweetie?, (2) Rain tomorrow should cover the tracks and (3) Got a wonderful Pearl Harbor Day surprise for KPC [the name of Zeoli’s organization]….wait for it. Cassidy.

His criminal case affidavit alleges that Cassidy’s tweets and blog postings caused A.Z. substantial emotional distress. She fears for her own safety and that of her fellow KPC members. As a result of the alleged harassment, A.Z. has not left her house for a year and a half, except to see her psychiatrist. A.Z. was in such fear for her safety that she did not go to an October 2010 retreat. Cassidy.

Despite the physical harm threatened in Cassidy’s Twitter and blog entries, and despite the substantial emotional distress his online activity allegedly caused Zeoli, Judge Titus found 18 U.S.C. § 2261A unconstitutional as applied to Cassidy’s prosecution (declining to decide whether  § 2261A is facially unconstitutional as to online activity), applying strict First Amendment scrutiny, with the statute being a content-based limitation on free speech. Cassidy. In so ruling, Judge Titus pointed out that complainant A.Z. is a public figure and that Cassidy’s online words “- which extended well beyond Cassidy’s threatening words — included opinions about matters of public concern. See Snyder v. Phelps, 131 S.Ct. 1207, 1219 (2011) (which I defended at the trial level on behalf of the Westboro Baptist Church, whose messages are abhorrent). Cassidy underlines:

Here, A.Z. had the ability to protect her own sensibilities simply by averting her eyes from the Defendant’s Blog and not looking at, or blocking his Tweets.

In United States v. Stevens, the Supreme Court affirmed the Third Circuit’s decision holding that a content-based restriction of protected speech ” i.e. a federal statute that criminalized the intentional creation, sale or possession of a depiction of animal cruelty ” did not serve a compelling state interest on the basis that these types of content-based restrictions of protected speech are presumptively invalid. [Stevens,] 130 S.Ct. 1577, 1584 (2010).12 Because the Government’s interest in criminalizing speech that inflicts emotional distress is not a compelling one, the statute does not survive strict scrutiny…

Assuming, however, that preventing the use of the Internet and other interactive computer services to inflict emotional distress on others qualifies as an important governmental interest, the issue here is whether the incidental restriction Section 2261A(2)(A) places upon speech is no greater than is essential to the furtherance of that interest. The facts of this case indicate that it does not. Defendant and the Amicus, the Electronic Frontier Foundation, point out that A.Z. is not merely a private individual but rather an easily identifiable public figure that leads a religious sect, and that many of the Defendant’s statements relate to KPC’s beliefs and A.Z.’s qualifications as a leader. Thus, this statute sweeps in the type of expression that the Supreme Court has consistently tried to protect. See e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) (the fundamental importance of the free flow of ideas and opinions on matters of public concern is the core of the First Amendment Protections, even where speech includes vehement caustic and sometimes unpleasantly sharp attacks.); Boos v. Barry, 485 U.S. 312, 322 (1988) (refusing to uphold a statute that restricted the use of displays critical of foreign governments in front of embassies or consulates in light of a longstanding refusal to [punish speech] because the speech in question might have an emotional impact on its audience.).


On a relevant defensive side note, Cassidy was first identified through subpoenas to Twitter, Google, and Hughes Network, collectively to learn his Internet Protocol address (IP address) and his actual identity. The Maryland Court of Appeals has already recognized a limited right to online anonymity to fight subpoenas to discover the identity of alleged online libelers. Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 966 A.2d 432 Md. (2009). The language of Brodie can be applied to fighting government subpoenas involving allegations of online criminal harassment and stalking.

In sum, many judges will be reluctant to provide sufficient First Amendment free expression protection to those charged with speech-related crimes. This article is an effort and cheat sheet towards turning them around.


Jon Katz practices criminal defense and First Amendment defense in Maryland, Virginia, and Washington, D.C. He blogs daily at Underdog Blog. Along with the MCDAA, Jon maintains the copyright over this article.

[1] New York Times v. U.S., 403 U.S. 713, 720 (1971) (Douglas, J., concurring, joined by Black, J.)

[2] City of Erie v. Pap’s A.M., 529 U.S. 277, 310 (2000) (Scalia, J., concurring).

[3] New York Times v. Sullivan, 376 U.S. 254 (1964) remains the key Supreme Court case for limiting the reach of libel laws. In Dring v. Sullivan, 423 F. Supp. 2d 540 (D.Md. 2006), I obtained the dismissal of an online libel suit based on the limits of long arm jurisdiction.

[4] City of Erie v. Pap’s A.M., 529 U.S. 277 (2000), reconfirms that nude performance falls within the ambit of the First Amendment’s free speech clause. Lawyers continue, with good reason, to argue that lap dancing also is First Amendment-protected. See Lap Dances Find Academic Champion as Cities Rein in Strip Clubs, (Bloomberg, Dec. 5, 2011).

[5] City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), addresses the negative secondary effects principle, which is a disingenuous legal fiction.

[6] City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) requires a sufficient number of accessible locations for the operation of adult entertainment businesses, including when they are zoned out of their current locations.

Thomas v. Chicago Park Dist., 545 U.S. 316 (2002), and FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990), prohibit government employees and officials from using unbridled discretion in issuing permits and licenses for demonstrations, adult entertainment businesses, and other expressive activity.