If you trash-talk a business and the owner sues you, the legal path is clear. You're protected by the First Amendment, indolent bloggers may write to support you, luminaries like Paul Alan Levy may get all up in your grill, and legislatures may pass laws to protect you.
But what are your rights if you're criminally prosecuted?
William Laurence Stanley of Dallas, Texas is exploring that question.
Stanley's a crook, and a search-engine-optimizer.
In 2014 federal prosecutors charged Stanley with extorting a former SEO client, a financial firm called Generational Equity. According to the when a dispute arose about Stanley's services, he repeatedly threatened to attack GE online unless they paid him money. He pled guilty to extortion and, in his factual allocution, admitted he extorted Generational Equity by threatening to post disparaging things about it on the internet unless it paid money that Stanley claimed was owed by another company acquired by GE. Stanley specifically admitted that he threatened to post fraudulent comments if his victims didn't pay him. A Dallas federal court sentenced him to 37 months in federal prison and ordered him to make restitution in amounts between $100 and $146,000 to a dozen victims, which — together with language in his factual allocution — suggests he extorted a variety of people and companies.
So far, this is straightforward. Extortion is not protected by the First Amendment.
But Stanley wasn't done, and this is where it gets trickier.
According to federal authorities, in September 2016 Stanley retaliated against Generational Equity for being a witness against him by posting false and derogatory comments about it online. According to the new federal complaint, Stanley (who was serving the tail end of his sentence in a halfway house and on home confinement at his daughter's house at the time) began trash-talking Generational Equity online through various posts and blogs he created, and employing SEO techniques to promote those comments.
Stanley is charged under 18 USC 1513(e), which provides:
Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.
William Stanley argues that he's being prosecuted for his speech, and that the First Amendment protects his actions. Is he right?
With all respect to Scott Greenfield, who wrote about this story already, I think that this particular prosecution does not violate the First Amendment. That's because Dallas federal prosecutors have cleverly avoided the First Amendment issue by taking on a heavier burden of proof than the statute requires. In the indictment, they charge that Stanley retaliated against GE by posting false and derogatory comments about it. By specifying that Stanley's assertions were false and derrogatory, the government has probably evaded the constitutional issue. This is an old prosecutor's trick — rendering constitutional problems with a statute moot by pleading around them and pretending that the stature requires you to prove more than it actually does.
But does the statute, Section 1513(e), require that? Could you commit a federal crime by intentionally trash-talking a federal witness against you, even if you only offered opinions or true facts? Rather alarmingly, that's not as clear. There are relatively few cases construing Section 1513(e) and many of those punt on the constitutional issue.
Take United States v. Sergentakis, 2015 WL 3763988 (SD NY 2015), in which a former employee of a charity was jailed for a kickback scheme. While in prison he wrote letters making wild allegations of child abuse against the charity's officers, and when he was released he created web sites making similar claims. When he was prosecuted under Section 1513(e), he brought a First Amendment defense. The district court rejected it under the doctrine that speech integral to criminal conduct is not protected by the First Amendment. This doctrine is typically invoked to explain why extortion, words used to form a conspiracy, etc. are not protected speech. In this context I find it unsatisfactorily circular — the speech is integral to criminal conduct because the government has defined bad-mouthing witnesses as criminal conduct. The court also found that the defendant's conduct was outside the First Amendment because Sergentakis' statements were defamatory — that is, provably false statements of fact, which are outside First Amendment protection. That part of the holding supports the government's appproach in the Stanley indictment.
In United States v. Camick, 796 F.3d 1206 (10th Cir. 2015), the court found that the filing of a nonmeritorious civil rights complaint against the witness could violate the statute, completely avoiding the First Amendment implications of criminalizing the act of petitioning the government. The fact that another court found that the civil rights complaint lacked merit might offer a limitation on use of the statute.
In United States v. Nursey, 2015 WL 7074570 (MD AL 2015), the defendant created fliers accusing a federal witness of being a child molester and distributed them at the witness' church. The defendant, charged under Section 1513(e), challenged the prosecution on First Amendment grounds. Nursey made an overbreadth challenge — that is, he argued that even if the statute could be constitutionally applied to him, it also swept up behavior protected by the First Amendment. He speculated, for instance, that a husband could violate the statute by divorcing his wife who provided information about him. Applying the traditional test for such challenges — that a defendant may only challenge a statute for overbreadth if a substantial number of its applications to other people are unconstitutional — the court rejected the challenge. Once again, the court did not confront the problem of what would happen if a defendant were prosecuted for truthful speech or opinion about a witness.
In short, authority on Section 1513(e) suggests that the government may constitutionally punish you for saying false things to retaliate against a federal witness against you. But here's where it gets cloudier — can the government punish you for saying true things, or opinions, in an effort to retaliate against a witness? Say the government gives a sweet deal and preferential treatment to a cooperating witness against me. Put another way, say the government uncritically believes and rewards a rat. Is it a federal crime for me to blog about how the rat was more culpable than me, but was unfairly treated in a preferential fashion because he was willing to cooperate? Is it a federal crime for me to point out, truthfully, the bad things the rat did? Is it a federal crime to describe my opinion that the rat has poor character? Is it a federal crime for me to tell potentially employers — truthfully — the reasons I think the rat is not trustworthy?
The government may suggest those things are crimes under the "speech integral to criminal conduct" doctrine, and they may find some support for the proposition. I think that's clearly wrong — the government shouldn't be able to beg the question by criminalizing speech and then saying the speech is now inherent in criminal conduct. Stanley's case is fairly straightforward — he admitted before to extorting victims by demanding money and threatening to make false statements about them, and now the government has undertaken the burden (whether or not the courts would impose it on them) of proving that he published false statements to harm a witness. Other applications, though, may be problematical.
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