Eugene Volokh notes a disturbing federal case regarding 18 U.S.C. § 1513(e), part of the witness retaliation statute, which appears to criminalize retaliatory speech against witnesses:
And U.S. v. Edwards, a nonprecedential decision handed down Thursday by the Sixth Circuit, read it precisely this way:
Joy Edwards made numerous derogatory posts on Facebook about a confidential informant who testified against her brothers during their criminal trial. The Facebook posts revealed the informant’s identity and called him—among other things—a “snitch.” Edwards was indicted on a single count of retaliating against a witness in violation of 18 U.S.C § 1513(e). At a bench trial, the district court found that the informant suffered harm as a result of these Facebook posts and that the posts were intended to retaliate against the informant. Edwards was convicted and sentenced to short terms of prison and lesser forms of confinement….
Basically, a confidential informant referred to as D.B. did controlled buys from some drug dealers to set them up for arrest. A few months after the trial, the sister of several defendants attacked D.B. on social media:
- Re-posting another user’s photo of D.B. on the witness stand and calling him a “snitch” in the comments section
- Commenting on her own post saying “f*** him,” “Look at that bitch ass snitch lips! They are crack up and ashey white from running it so much! His bitch ass needs some WD40!”
- Re-posting another user’s doctored photo of D.B. holding a t-shirt with a police badge on it
- Re-posting another user’s photo of D.B. with the caption “stop snitching” over it, to which Edwards added, “Snitch ass bitch”
- Commenting on her own post in response to another user’s question about the identity of D.B., saying, “This guy is snitching! He snitched on my brothers! And lied about everything!”
- Re-posting another user’s photo of D.B. with the caption “Snitching like a bitch”
- Re-posting another user’s picture featuring hands in police handcuffs with the caption “Man up … Shut your mouth. Take the charge and don’t snitch.”
- “Liked” numerous other users’ posts of similar material
It’s important to note two things here. First, all of this activity took place after the trial was over, so this wasn’t a case of interfering with a trial by attempting to intimidating a witness. Second, although the posts revealed D.B.’s name and other personal information, none of these posts amount to a “true threat” or an “incitement” which would not be protected by the First Amendment.
Nevertheless, it was enough to send her to jail, and her conviction was upheld:
The court upheld Edwards’ conviction—not because her speech was a true threat or incitement (again, this statute doesn’t require proof of that), but simply because it was intended to retaliate and was intended to and did cause “harm”
As Eugene Volokh explains, that isn’t normally considered to be an exception to First Amendment protections. As long as you don’t make false statements of fact, it’s entirely legal to say things about people that you know will make their life difficult.
Volokh summarizes 18 U.S.C. § 1513(e) as applying to
- “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,
That’s extremely broad. Taken at face value, this would make it nearly impossible to criticize anyone who reported a crime to federal law enforcement, even when the crime is…not a very big one:
18 USC §1865 & 36 CFR §2.11 make it a federal crime to picnic in violation of the picnicking conditions in a national park.
— A Crime a Day (@CrimeADay) July 29, 2019
(@CrimeADay says “18 USC §1865 & 36 CFR §2.11 make it a federal crime to picnic in violation of the picnicking conditions in a national park.”)
So if someone reported you to the rangers for a picnicking violation, and you found out they owned a car dealership in your town, you would not be allowed to call out the dealership owners as joyless assholes, because that would be “retaliation” which could cause them to lose business.
It’s not even clear you have to have a connection to the crime to get in trouble. In theory, if I called out D.B. by name in this post for being a snitch ass bitch, I could be charged with a crime, as could you if you reposted it somewhere.
For that matter, if news broke that a major politician reported one of his neighbors as a “suspected terrorist” with no more evidence than that he was dark skinned and wore a turban, it looks like we would technically be in violation of the witness retaliation statute for attacking him on Twitter during election season, because that would interfere with his livelihood.
The good news is that the decision in the appeal did not reach the First Amendment issue for technical reasons, and it won’t set a dangerous precedent. Nevertheless, at least one federal prosecutor and one federal judge didn’t see a problem with this law.
In any case, this issue will probably end up in court again, and as Eugene Volokh says,
I hope that, when the First Amendment question is squarely presented to an appellate court, it will recognize that the statute (at least unless it’s sharply limited to threats, incitement, or nonspeech conduct) is unconstitutionally overbroad.
You can read Eugene Volokh’s whole post here.