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Crime and the First Amendment

Although I have a Facebook page, I don't spend time on it, for two basic reasons:  first, I've seen enough dog pictures to last me a lifetime, and second, no, I don't care where you went shopping today.

Lester Packingham was more social-media friendly.  Six years ago, after a judge dismissed a traffic ticket he'd gotten, he posted this message on his Facebook page:

"Man God is Good! How about I got so much favor they dismissed the ticket before court even started?  No fine, no court cost, no nothing spent ... Praise be to GOD, WOW! Thanks JESUS!"

Packingham had a far better reason to stay off of Facebook than I do:  that post got him charged with a felony, for which he received a suspended prison sentence.

Eight years before that, Packingham, then a 21-year-old college student, was convicted of having sex with a 13-year-old girl, and wound up on the North Carolina sex offender registry.  The state's law makes it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages."  There are definitions and exceptions, but the bottom line is that Packingham's Facebook post violated the law.

Packingham's case wound up in the U.S. Supreme Court, and Michelle Carter's might be there someday, too.  Last week she was convicted of involuntary manslaughter; the judge (it was a bench trial) found that she had talked her boyfriend into killing himself.

Setting aside the question of legal guilt, her moral guilt was far more clearcut than Packingham's.  The boyfriend was seriously depressed, and at first Carter urged him to get treatment.  But her attitude changed when he started talking about suicide.  She explained in text messages how he could run carbon monoxide into his truck, telling him that "if you emit 3200 ppm of it for five to ten mins you will die within a half hour," and that "you just need to do it." 

When he finally drove to a spot at a parking lot to do the deed, the two talked by cellphone.  At one time, apparently experiencing a change of heart, the boyfriend started to get out of the car.  Carter told him to get back in.  He did, and died.  Carter, now 20 (she was 17 at the time, and the boyfriend was 18), faces twenty years in prison, although most observers expect her to get a small fraction of that.

The Supreme Court came down with is decision in Packingham last week, and unanimously held that the state statute was unconstitutional.  There wasn't much heavy lifting involved; whoever wrote the law was blithely unaware of even the rudiments of First Amendment law.  The State argued that the statute was content-neutral, but that hardly served to cure its shocking overbreadth; as Alito pointed out in his opinion concurring only in judgment, joined by Roberts and Thomas, the law could have equally been applied to Packingham's accessing Amazon, the Washington Post, or even WebMD.    

Packingham also provides proof that irony is not dead.  The reason for the trio's concurrence is their belief that the majority opinion is overbroad.  And the state's argument would have fared better if the law hadn't been content-neutral; there's no question that Packingham would have violated the law if he'd used the Internet to solicit a minor for sex, or had been trolling teen-age chat rooms.

Carter's ultimate fate is a bit harder to predict.  In many states, assisted suicide is illegal, and that goes for encouraging people to do it.  But Massachusetts, the state where this took place, doesn't have such a law.  Instead, prosecutors had to rely on the argument that Carter's conduct was reckless and likely to cause substantial harm, the elements of voluntary manslaughter.  The judge determined that while the texts didn't suffice, her last phone conversation with the boyfriend did.

The ACLU bemoans the decision as a First Amendment violation, suggesting that it might have a chilling effect on end-of-life discussions with families.  Sorry, but I'm not seeing a whole lot of end-of-life discussions among families involving coaxing grandma to get back into a carbon monoxide-laden car.

One more First Amendment case out of SCOTUS last week, involving whether you can be denied a trademark because the name you've chosen is offensive.  I won't link to the decision here, because I care about the reasoning not a whit, and neither do you.  The upshot is that the Washington Redskins, whose logo makes Chief Wahoo look like the embodiment of diversity, won't have to change their name.  I guess we'll see the boundaries of that rule tested when somebody decides to register the name, "Parkville Faggots."

Now, completely off the subject of the First Amendment.  Remember that I said Carter had a bench trial?

I've cautioned against bench trials over the years.  I've tried cases to a judge, and I think there are times when they're perfectly appropriate.  This one would seem to be.  The case has zero jury appeal, and you figure the judge would be more protective of the First Amendment than the jurors.

My concern has always been how it affected your client's chances on appeal.  You lose a lot of appellate issues by trying a case to the bench.  Evidentiary issues are largely negated by the presumption that a judge considers only admissible evidence.  (Although there are some good decision from the 8th, like this one, which hold that the presumption disappears if the judge admits the evidence over objection.)  There are no jury instructions for a judge to screw up, and no viable claim that the judge "lost his way" because of some comment that the prosecutor made.

And here's another one:  a judge is going to explain his verdict.  A jury doesn't have that opportunity; the verdict form doesn't include an essay portion.

You have to look at a case holistically, not just confined to trial.  Here, Carter's biggest argument was the First Amendment issue.  On appeal from a jury trial, the appellate panel would have had to look at the entire range of statements Carter made, including many of the earlier ones, where the free speech argument was strongest.  Instead, the judge explained that he didn't consider those in arriving at his verdict:  he considered only her statements urging the boyfriend to get back in the truck.  And that's going to be tough to surmount.

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