The Idaho controversy surrounding the alleged sexual assault (by three boys from Sudan and Iraq) of a 5 year old Twin Falls girl just keeps growing—now even to the Washington Post.
See this very informative column by Eugene Volokh*** who first gives the facts as we know them about the controversy, excerpts the written press statement by US Attorney Wendy Olson (see our post yesterday), and then says this (emphasis is mine). Hat tip: Paul
This, it seems to me, goes beyond calling for accuracy (and trying to deter threats, which are indeed criminally punishable). The prosecutor — a prosecutor backed by the might of the federal government — is not just condemning “threatening statements.” She is equally condemning “inflammatory” statements “about the perpetrators or the crime,” as well as “the spread of false information.”
There is no First Amendment exception for “inflammatory” statements; and even false statements about matters of public concern, the Supreme Court has repeatedly held, are an inevitable part of free debate. While deliberate lies about particular people may lead to criminal punishment in some states that have carefully crafted “criminal libel” statutes, that would be under state law, not federal law; and though Idaho still has an old criminal libel law, it is almost never used, and is likely unconstitutionally drafted given modern First Amendment standards. Moreover, honest mistakes on matters of public concern are often constitutionally protected, especially against criminal punishment.
The federal prosecutor surely knows how to speak carefully and precisely about what very limited sorts of speech she can prosecute. Yet she chose to equally threaten federal prosecution not just for the punishable true threats — or for the deliberate lies that may be punished under state but not federal law — but also for an unspecified range of “inflammatory … statements about the perpetrators or the crime itself,” as well as for “the spread of false information” (with no limitation on the spread of deliberate lies).
It looks like an attempt to chill constitutionally protected speech through the threat of federal prosecution.
Please read the whole thing!
A commenter to Volokh’s piece, David Behar, says he filed this complaint against Olson:
Executive Office for United States Attorneys
United States Department of Justice
950 Pennsylvania Avenue, NW, Room 2242
Washington, DC 20530-0001
Office of Bar Counsel
525 West Jefferson
P. O. Box 895
Boise, Idaho 83701
(208) 334-4500
Fax: (208) 334-2764
www.isb.idaho.gov ;
RE: U.S. Attorney for Idaho Wendy J. Olson, Washington Group IV, 800 Park Blvd., Suite 600, Boise, ID 83712, Phone: (208) 334-1211, Fax: (208) 334-9375 ; Your 3.6 (a)
Dear Madam or Sir:
US Attorneys are subject to the discipline of the state bar where they practice.
The above lawyer stated in the attached release, “The spread of false information or inflammatory or threatening statements about the perpetrators or the crime itself reduces public safety and may violate federal law. We have seen time and again that the spread of falsehoods about refugees divides our communities.”
It is posted here:
https://www.justice.gov/usao-id/pr/us-attorney-sta…enforcement-response
Investigate, and discipline this lawyer for violating your Rule, for using her office to intimidate dissenters from her political views.
***Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
Follow @volokhc