Tag: Free speech

PolitiFact (Jeff Cercone) has the story; I am one of the experts. An excerpt about the facts:

After Iran launched a barrage of missiles at Israel on April 13 in its first direct military assault on the country, Sen. Rick Scott, R-Fla., told his X followers why he thought former President Donald Trump should be reelected.

“This is the strength we need back in the White House!” Scott wrote April 13, sharing a July 22, 2018, tweet in which Trump threatened Iran’s president. Trump later that day shared a screenshot of Scott’s post on Truth Social , without further comment.

Trump’s sharing of Scott’s post led several X users to accuse the former president of violating the Logan Act, a 1799 law that bars private citizens from communicating with foreign governments to influence them about disputes with the U.S.

My thinking, from my e-mail to the PolitiFact writer (which was largely quoted in the post):

[1.] The Logan Act is a 1799 statute that makes it a crime for a U.S. citizen acting “without authority of the United States” to

• “directly or indirectly commence[] or carr[y] on any correspondence or intercourse with any foreign government or any officer or agent thereof,
• “with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof,
• “in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.”

It thus purports to restrict at least some forms of negotiations with foreign governments by private citizens.

[2.] If this is read as applying to public exhortations to foreign governments, it would pretty clearly violate modern First Amendment principles. Americans – whether Senators, former officeholders, newspaper editors, or ordinary citizens – have a right to publicly call for foreign governments to do or not do various things.

The New York Times editorial board has a right to call on Israel to follow American government advice about Gaza, or to call on Russia to free Wall Street Journal reporter Evan Gershkovich. People have a right to publicly say “Putin, keep up the good fight against Ukraine” (or, in an earlier era, “Sandinistas, keep up the good fight against the contras”) even though that would be aimed at defeating U.S. policy. Likewise, legislators are entitled to do the same, as are well-known (or unknown) private citizens.

More broadly, of course a campaigning public official has to be able to express his views about foreign policy, and statements to voters framed as demands to foreign officials are a pretty normal and constitutionally protected means of doing so. [I should have more precisely said, “a person campaigning for public office.” -EV]

My sense is that, if there is a prosecution … a court would read the statute narrowly, as focused only on direct one-on-one negotiations (though even those may well be constitutionally protected). But if it concludes that “correspondence or intercourse” includes public statements, aimed at least at much at a domestic audience as at the foreign country, then I can’t see how the statute thus interpreted would be consistent with First Amendment law.

Here’s a post of mine on a similar question in 2015, which also quotes Profs. Steve Vladeck (now at Texas), Michael Dorf (Cornell), and Marty Lederman (Georgetown).

[* * *]

I’ve been hearing some buzz about whether House Speaker John A. Boehner, when he invited Israeli Prime Minister Benjamin Netanyahu to address Congress, and the 47 Republican senators who wrote a letter to Iranian leaders violated the Logan Act. I’m not an expert on the subject, and don’t have an expert opinion. But I thought I’d canvass some opinions from scholars who have focused on this question (which is quite separate, of course, from the question whether the speaker’s and senators’ actions were wise).

1. First, what’s the Logan Act, you ask? Unusually for statutes (as opposed to judicially crafted doctrines, such as the Miranda rule), the Logan Act is named after the supposed bad guy: Dr. George Logan, a state legislator who traveled to France in 1798 to try to negotiate an end to the France-America Quasi-War. Congress didn’t go for that, and enacted the statute that now appears at 18 U.S.C. § 953:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

(As it happens, a couple of years later Logan was appointed and then elected to the Senate, and apparently tried and failed to get the Logan Act repealed.)

2. So what does the Logan Act mean today, and is it even constitutional, given modern understandings of the First Amendment? A few reactions:

a. First, Prof. Steve Vladeck (American Univ.) has a post on the subject, which strikes me as likely correct on the law. Some excerpts:

[1.] [Under the Act,] the citizen must act “without authority of the United States.” Although most assume that means without authority of the Executive Branch, the Logan Act itself does not specify what this term means, and the State Department told Congress in 1975 that “Nothing in section 953 … would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.” … Combined with the rule of lenity and the constitutional concerns identified below, it seems likely that … courts would interpret this provision to not apply to such official communications from Congress.

[2.] It seems quite likely, as one district court suggested in passing in 1964, that the terms of the statute are both unconstitutionally vague and in any event unlikely to survive the far stricter standards contemporary courts place on such content-based restrictions on speech….

[3.] [T]he Logan Act has never been successfully used (indeed, the last indictment under the Act was in … 1803). Although most assume this is just a practical obstacle to a contemporary prosecution, it’s worth reminding folks about “desuetude”—the legal doctrine pursuant to which statutes (especially criminal ones) may lapse if they are never enforced (interested readers should check out a fantastic 2006 student note on the subject in the Harvard Law Review). If ever there was a case in which desuetude could be a successful defense to a federal criminal prosecution, I have to think that this would be it.

b. Now let me turn to Prof. Michael Dorf (Cornell), though speaking not about this controversy but about the similar one in 2007, when then-Speaker Nancy Pelosi went to Syria to negotiate with Assad:

I’ll just note four issues:

1) There is zero chance that Pelosi will actually be prosecuted.

2) In the hypothetical world in which she were prosecuted, she could claim:

a) That as Speaker, she had “authority of the United States.” (This strikes me as a weak argument because in matters of diplomatic relations, the executive branch is the relevant authority.)

b) Her intent was to influence Syria’s conduct with respect to Israel, not the United States. (This strikes me as a good argument, because it appears to be true. Her trip was pre-blessed by Israeli PM Olmert. The Administration might claim that Pelosi’s trip nonetheless was aimed to “defeat the measures of the United States,” namely the measures aimed at isolating Syria, but could Pelosi be shown to have had the “intent” to do so? Perhaps. Her aim was in part to engage Syria, as recommended by the Hamilton/Baker report, which does sound like the opposite of isolating Syria.)

c) She was on a fact-finding mission. (Pelosi has said as much, and members of Congress are, as I noted in my last entry on this subject, entitled to go on fact-finding missions without the President’s blessing. But if she was on a fact-finding mission that also included violations of the Logan Act, she would still be guilty.)

3) As the Speaker and others have noted, Republican members of Congress have also been to Syria, including this past week, without incurring the wrath of the Administration. One could, in theory, interpret the Administration’s silence with respect to these other freelancers as amounting to a delegation of “authority” to them to conduct foreign policy, but that would be a strained reading of the statute in the interest of sustaining a selective prosecution. If it undermines official efforts of the U.S. to isolate Syria for a Democratic member of Congress to meet with Bashar Assad, then a meeting with a Repubican member of Congress has the same effect. There may be circumstances in which a President could legitimately authorize a member of his own party in Congress to conduct diplomacy on his behalf while withholding such authority from other members of Congress, but if that is to justify selective prosecution under the Logan Act, one would think that the authorization would have to come before the diplomacy.

4) Because no one has ever been convicted of violating the Logan Act, and no indictments have even issued in the last 200 years, any inferences about its meaning are necessarily speculative. See point 1 above.

c. Finally, Prof. Marty Lederman (Georgetown):

[S]uch communications by legislators with foreign officials—including communications with our adversaries, and sometimes expressing views contrary to those of the Executive branch—are nothing new. It’s been going on in full force since at least the beginning of the 20th Century. See Detlev Vagts’s very interesting 1966 account of the history of the Logan Act in 60 AMJIL 268, 275f. for some prominent examples. If Pelosi is acting unlawfully or inappropriately, she has plenty of company….

The prohibition of [the Logan Act], read literally, has been constantly violated since its enactment, as Vagts and others recount. (Indeed, it would appear even to prohibit, e.g., attorneys in the U.S. from representing foreign nations in U.S. litigation.) Yet only one indictment was ever brought—in 1802, when a Kentucky farmer wrote a newspaper article advocating that the western part of the U.S. form a new nation allied to France, and a zealous United States attorney (John Marshall’s brother-in-law!) procured an indictment. Not surprisingly, the case went nowhere. And that’s the history of the Logan Act. As Lou Fisher has written, “if ever there is a dead letter in the law, it is the Logan Act and the stilted thinking that inspired it.”

Does the Logan Act apply to members of Congress? Vagts says yes, on a literal reading, 60 AMJIL at 290, although the “without authority of the United States” condition certainly would make it an interesting question, in the unlikely event the statute were ever invoked.

Does the Logan Act raise First Amendment questions as applied to private parties? Vagts again suggests it does. I’m not so sure—at least as to one-on-one private negotiations overseas. But again—it doesn’t matter, because the statute has (appropriately) lapsed into desuetude.

What about the constitutional question of the permissibility of a member of the Congress engaging in diplomatic discussions with a foreign nation? Frankly, it troubles me—or it would do so if Pelosi were purporting to speak on behalf of the United States.

Congress may, by statute, dictate the foreign policy of the United States. (By the way, that’s a fine excuse to note the most important constitutional development of the week: As great and significant as the Court’s analysis on Article III standing was in Monday’s landmark Massachusetts v. EPA decision, the sentence in Stevens’s opinion that might have the most important long-term impact was this one: “[W]hile the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws.”)

Nevertheless, perhaps it’s the OLC lawyer in me, but I think there’s much to be said for the notion that insofar as actual U.S. communications with the outside world are concerned, the President is to be (in Marshall’s famous words) the “sole organ” by which U.S. policy is conveyed (consistent, again, with statutory direction). More broadly, as far as official U.S. execution of the law is concerned, Congress and its members and/or agents can have no role, once the process of bicameralism and presentment is completed. Or so say Chadha, Bowhser, WMATA, Buckley, etc., anyway.

For me, then, it would be important to know in what capacity Pelosi was purporting to speak. If she were “only” conveying the views of the opposition party—or of a prominent private person—and not purporting to speak for the U.S., then I don’t think there’d be much of a constitutional problem, however imprudent or inadvisable her actions might arguably have been. Again, I assume that State Department officials were with her, and that to the extent her views were inconsistent with the official U.S. views, that would have been made known to Syria in no uncertain terms. If that’s the case, I think the problems, if any, are not constitutional. But if Pelosi—or any of the other numerous congressional officials who have long engaged in diplomacy with foreign nations—purported to be speaking on behalf of the Nation, it would raise constitutional questions.

In any event, I thought some of our readers would find these items interesting.

The article is here; the Introduction and the Conclusion:

Sometimes lies are constitutionally punishable: Consider libel, false state­ments to government investigators, fraudulent charitable fundraising, and more. (I speak here of lies in the sense of knowing or reckless falsehoods, rather than honest mistakes.) But sometimes even deliberate lies are constitutionally protected. In New York Times v. Sullivan, the Court held that even deliberate lies (said with “actual malice”) about the government are constitutionally protected. And in United States v. Alvarez, five of the justices agreed that lies “about philosophy, religion, history, the social sciences, the arts, and the like” are generally protected.

The Supreme Court hasn’t explained where the line is drawn, and that leaves unclear where important areas of controversy—such as laws punishing lies in election campaigns—should fall. In this short article, I hope to offer an account that makes sense of the precedents and a framework for making future decisions….

The Court has never precisely explained when lies are constitutionally protected and when they are punishable. But the particular lines that it has drawn seem generally consistent with a comparative institutional approach to responding to lies. Government determination of which assertions are false and should therefore be punished is always perilous. When institutions—scholars, the government as speaker, the media, perhaps opposing election campaigns—there is a way to avoid the peril while still rebutting the lies. It’s imperfect, but it’s better than the alternative of government coercion; in such a situation, “the fitting remedy for” lies, as well as for “evil counsels,” is rebuttal.

But in other situations, when the harm from lies is serious and alternative institutions for rebutting the lies aren’t likely to exist, the government can indeed try to deter the lies by the threat of criminal prosecution or civil liability. That explains the constitutionality of properly limited libel law, and of the laws punishing fraud, perjury, and the like. And that can help decide where the lines can be drawn in the areas that remain unsettled.

From U.S. v. Osadzinski, decided yesterday by the Seventh Circuit (Judge Michael Scudder, joined by Judges Diane Wood and Amy St. Eve):

Thomas Osadzinski appeals his conviction for providing material support to a terrorist organization. In 2019 he created a computer program that allowed ISIS (the Islamic State in Iraq and Syria) and its followers to rapidly duplicate terrorist propaganda videos online and thereby to stay a step ahead of efforts by the United States and other western governments to thwart the organization’s media campaign. Osadzinski shared his computer program with people he believed were ISIS supporters, taught them how to use it, and deployed it to compile and disseminate a large trove of ISIS media.

The court held that the conviction was consistent with the First Amendment, as applied in Holder v. Humanitarian Law Project (2010):

By its terms, 18 U.S.C. § 2339B makes it a crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.” Congress defined “material support or resources” as “any property, tangible or intangible, or service.” “Services” include any “expert advice or assistance” that is “derived from scientific, technical or other specialized knowledge.” … [T]he Supreme Court in HLP explained that § 2339B did not prevent a person from freely speaking about, or even independently advocating for, a terrorist organization. Rather, the Court made clear that the material-support statute prohibited “only a narrow category of speech” that falls outside the protection of the First Amendment—speech “to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” …

For the sake of resolving this appeal, we accept Osadzinski’s contention that all of his offense conduct qualifies as “speech” within the meaning of the First Amendment. That includes several activities that have been recognized as expression, such as writing an article and instruction manual, forwarding multimedia links, and sending pro-ISIS messages over social media. It also includes Osadzinski’s creation, execution, and distribution of source code, which other circuits have found to constitute “speech” under the First Amendment.

This case does not require us to articulate the precise contours of the First Amendment’s relationship with computer code. The government appears to concede that all of Osadzinski’s relevant conduct constitutes speech. We are comfortable, therefore, assuming without definitively deciding that Osadzinski’s offense conduct consisted entirely of expressive activity within the meaning of the First Amendment.

That observation does not end our analysis, however. To say that Osadzinski engaged in expressive activity is not the same as concluding that the First Amendment protected the activity without qualification. The law has long recognized that, in limited circumstances, speech may lose its full measure of constitutional protection and indeed violate the law. Take, for example, incitements designed and likely to “produc[e] imminent lawless action,” which the Supreme Court declined to shield from content-based restrictions in Brandenburg v. Ohio (1969). Or consider “true threats” of violence, which the Court likewise held to be a less protected category of speech ….

The Supreme Court’s decision in HLP grounded itself in these principles. The Court in no way questioned the right to independently express personal views—positive, negative, or neutral—about terrorist organizations. But it was equally clear that the right has limits. One such limit is Congress’s authority to prohibit expressive activity that amounts to the provision of material support to a foreign terrorist organization where the support is either addressed to, directed by, or coordinated with that organization.

The jury found that Osadzinski had acted in coordination with or under the direction of ISIS—which HLP determined to fall outside the protection of the First Amendment. The point is not subject to doubt, as the district court took care to instruct the jurors not to return a guilty verdict unless they concluded beyond a reasonable doubt that Osadzinski had knowingly acted “in coordination with, or at the direction of, a foreign terrorist organization.” The court further explained that “[i]ndependent activity or advocacy [ ] is not prohibited” and, in case any doubt remained, doubled down in a separate instruction: “Advocacy that is done independently of the terrorist organization and not at its direction or in coordination with it does not violate the statute.” In returning its verdict, the jury necessarily found that Osadzinski engaged in unprotected expressive activity in concert with ISIS. On this record, and having conducted our own independent legal review of Osadzinski’s legal claims, we agree with the district court that Osadzinski’s material-support conviction did not offend the First Amendment.

Joined by amicus, Osadzinski presses an even broader legal point. He objects that affirming his conviction would all but eliminate the constitutional right to independently advocate for a terrorist organization. Osadzinski highlights that, if a group’s general call for support is enough to constitute “direction” under HLP, then anyone who watches a video like Inside 8 would subsequently be barred from engaging in core First Amendment activity—viewing and sharing others’ viewpoints—simply because the terrorist group asks its supporters to do so.

Osadzinski is right on a broad level. Any holding that would eliminate—explicitly or otherwise—a person’s right to engage in independent advocacy for a terrorist organization would conflict with long-recognized constitutional principles. We have observed that section 2339B does not prohibit persons from expressing sympathy for the views of a foreign terrorist organization. We reject any interpretation of “coordination” or “direction” that would prohibit expressive activity aligned with that view.

But Osadzinski’s baseline assumption is mistaken. He was not convicted simply for watching Inside 8 and subsequently engaging in what would otherwise constitute independent advocacy. Far from it. At every step, Osadzinski closely coordinated his activity with ISIS and its media office by contributing to official videos and providing them with a software tool to organize, duplicate, and disseminate media to a wider audience while circumventing censors. Our affirming his conviction respects these legal lines….

The court also held that § 2339B clearly applied to Osadzinski’s behavior:

We have no difficulty concluding that Osadzinski’s actions qualified as a “service” that materially supported ISIS. Recall that the statute defines “service” to include “expert advice or assistance” “derived from scientific, technical or other specialized knowledge.” Osadzinski provided exactly that. He used his computer training to create and deploy a computer script that duplicated troves of ISIS propaganda to circumvent the censorship of ISIS media online. He then instructed other ISIS supporters on how to use the script to achieve the same objective. In doing so, he provided material support to ISIS (and its media campaign) within the meaning of § 2339B….

Osadzinski emphasizes that the term “service” in § 2339B, as construed in HLP, extends only to concerted speech activity—that which is addressed to, coordinated with, or directed by ISIS. Again, we accept Osadzinski’s base assumption that his offense conduct entailed expressive activity. We nonetheless conclude that his conduct unambiguously qualifies as concerted activity.

HLP did not present the Supreme Court with an occasion to drill down into how much “coordination” or “direction” is required to amount to the provision of “services” within the meaning of § 2339B. The line dividing concerted conduct from independent advocacy will doubtless emerge as courts continue to consider challenges to convictions under § 2339B. We need only decide whether Osadzinski’s conduct clearly falls on the proscribed side of that line.

It did. Osadzinski acted in response to what he perceived to be a solemn directive from ISIS contained in the Inside 8 video: “Support your khilafah on the digital front” by “adopt[ing] the messaging put out by its official media,” and “striv[ing] to disseminate it far and wide.” In discussions with the undercover law enforcement agents, he explicitly referenced Inside 8’s directive: “[I]f they close one account, open another three. And if they close three, open another 30.” And he sought to do just that.

For months, Osadzinski labored diligently to answer ISIS’s call for help in waging its media campaign. He assisted ISIS’s media offices by contributing English subtitles and a voiceover to their videos. He compiled and organized a massive database of high-resolution ISIS videos for future distribution. He designed a program to automatically organize and multiply ISIS content online. And he taught fellow ISIS supporters how to do the same, spending hours over several days to assist with troubleshooting. Through these actions, Osadzinski propelled himself far beyond the role of an independent advocate, effectively fusing his voice with that of ISIS’s media bureaus by improving, contributing to, compiling, organizing, and designing a tool to explosively distribute their official publications.

Throughout, Osadzinski coordinated his actions—or, at the very least, attempted to coordinate them—with ISIS members. At least twice he reiterated to Agent 3, “[i]f any brothers need help with security, tell them to come to me.” When Agent 1 offered to put Osadzinski in touch with ISIS’s official media bureau, he replied that he hoped to do so “in the near future.” He later invited Agent 3 to share his ISIS media channels with “anyone [he] trusted.” When Agent 2 requested guidance on how to run the computer program that he could take back to ISIS members, Osadzinski did not hesitate. He even wrote a step-by-step instructional guide for any ISIS follower to use.

Osadzinski planned to go even further. He explained to Agent 3 that he intended to convert his comprehensive archive of ISIS videos into a torrent that could be spread widely with minimal risk of censorship. He even suggested working in tandem with ISIS’s official media bureaus to help them organize their online content. Through the dissemination and deployment of his code, Osadzinski hoped that “the brothers who have access to the disorganized al-Furat Media and al-Hayat Media Center channels will be able to organize them or give me access to them so that I would be able to organize them.” Those are not the words of an unassociated or independent advocate. They are more suggestive of what Osadzinski had at that point become: a self-deputized IT servicer for the Islamic State.

Osadzinski highlights that at one point in June 2018 he declined Agent 3’s invitation to connect with ISIS members. While true, Osadzinski explained that he did so only because he knew he was being watched by the FBI. As soon as he believed the surveillance had ended, he resumed coordination with ISIS. By August 2019, he proclaimed that “they gave up following me” so “now I am making as much jihad as possible.” That comment, compounded by dozens of others like it, reflects Osadzinski’s expressed intent to coordinate with ISIS.

Taken together, the totality of the record refutes Osadzinski’s claim that he had no idea his conduct might violate § 2339B. Time and time again, Osadzinski took concrete action in direct response to ISIS’s call for help to combat online censorship. He did so in attempted coordination with ISIS’s official media bureau and members with the expressed intent for that coordination to deepen. Such conduct is inconsistent with independent advocacy and is proscribed by § 2339B.

In the final analysis, then, … [Osadzinski] attempted to engage in activity coordinated with or directed by a known foreign terrorist organization. Such activity is both unprotected by the First Amendment and clearly violative of § 2339B….

From yesterday’s Justice Department press release:

A Berklee College of Music student, who is a citizen of the People’s Republic of China (PRC), was convicted by a federal jury in Boston today of stalking and threatening an individual who posted fliers in support of democracy in China around the Berklee campus area.

Xiaolei Wu, 26, was convicted following a four-day jury trial of one count of cyberstalking and one count of interstate transmissions of threatening communication. U.S. District Court Judge Denise J. Casper scheduled sentencing for April 24, 2024. Wu was arrested and charged by criminal complaint in December 2022 and subsequently indicted by a federal grand jury in January 2023….

On Oct. 22, 2022, while Wu was attending the Berklee College of Music, an individual posted a flier on or near the Berklee College of Music campus which said, “Stand with Chinese People,” as well as, “We Want Freedom,” and “We Want Democracy.” Beginning on or about Oct. 22, 2022, and continuing until Oct. 24, 2022, Wu made a series of communications via WeChat, email and Instagram directed towards the victim who posted the flier. Among other things, Wu said, “Post more, I will chop your bastard hands off.” He also told the victim that he had informed the public security agency in China about the victim’s actions and that the public security agency in China would “greet” the victim’s family. Additionally, Wu solicited others to find out where the victim was living, publicly posted the victim’s email address in the hopes that others would abuse the victim online, and he reported the victim’s information back to a member of the Chinese government….

You can also read the FBI agent’s affidavit describing the facts as the government alleged them to be. An excerpt:

12. On or about October 22, 2022, at approximately 10:48 pm, after Individual 1 had posted the photograph of the flier to Instagram, WU posted in Berklee Class of 2024 WeChat group. At the time, the group had over 300 members, including Individual 1. WU’s posts were in Chinese. A translation of WU’s posts indicates that he said the following:

@[Individual 1] don’t you fucking post reactionary posters
Fucking tear [tore] all of them you bastard
You go to post them at Tian’anmen Square
Post more, I will chop your bastard hand(s) off
…
Let barklee [sic] bite your hand(s) off
Not killed by pandemic but about to be killed by Public Security
[image of law enforcement personnel]

13. On October 23, 2022, at approximately 1:54 am, WU posted another message to the Berklee Class of 2024 WeChat group, in which he said the following:

I already called the tipoff line in the country, the public security
agency will go greet your family.

I actually follow Justice Holmes in recognizing the potential benefits of speech restrictions. Among other things, while it’s hard to estimate the likely consequences of any particular statement going forward, looking backward we can see that virtually every ideological crime (whether committed by a solo offender, a group, or a government) stemmed in part from some sort of political or religious speech. If only we could prevent that, without causing all sorts of other problems ….

My view, though, is that on balance attempts to restrict the expression of bad views generally do more harm than good; and the quote in the title expresses well one of the many forms of such harm. (The earliest use of the quote I found is from 2018, by Robert Graboyes, though I noticed it because of this more recent post of his.)