Eugene Volokh reports on an alarming statement issued by Wendy J. Olson in her capacity as U.S. Attorney for the District of Idaho. Olson stated that “the spread of false information or inflammatory or threatening statements about the perpetrators” of a particular crime or the crime itself “may violate federal law.” Her full statement is here.
I’ll discuss the particular crime Olson referred to in a moment. You may have already guessed that the case in question has political overtones and that the statements Olson wants to halt may be harmful to President Obama’s agenda.
But it doesn’t really matter what crime prompted Olson to make this statement. As Volokh says, there is no First Amendment exception for “inflammatory” statements, and the Supreme Court has repeatedly held that false statements about matters of public concern are an inevitable part of free debate.
Now for the particulars, as recounted by Volokh. Earlier this month, a 5-year old Idaho girl allegedly was sexually assaulted by three boys ages 7, 10 and 14. The exact nature of the alleged assault is unclear, but it seems to have been a sexual touching by the 7-year-old. The older boys are charged because they allegedly put the 7-year-old up to it.
According to the local newspaper, law enforcement officials suspect the three boys have been in the U.S. fewer than two years. However, they aren’t sure whether the families are refugees.
In the weeks that followed, rumors circulated that the boys are Syrian refugees. But according to Volokh, they may not be refugees and, in any event, probably come from Sudan and/or Iraq.
In addition, the crime was described as being much more lurid than apparently it was. For example, it was depicted as a gang-rape at knife point.
Finally, it was claimed that the local authorities were covering up the attacks, the way some European police departments are said to have covered up sexual assaults by adult migrants from Islamic countries. As to these rumors, Volokh says: “As best I can tell from news accounts, there was no such cover-up, though many of the details of the investigation were indeed kept confidential because the attackers were juveniles.”
According to Volokh, the various rumors seem to have led to threatening emails and phone calls to local officials’ offices. Naturally, then, Idaho officials wanted to call for calm and implore citizens not to spread false information.
Unfortunately, Olson’s statement goes beyond these admirable goals. Here, again, is the key passage:
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.
Volokh is right when he argues that, by saying this, the prosecutor, backed by the might of the federal government, is not just condemning “threatening statements,” which are, indeed, legally problematic. She is equally condemning “inflammatory” statements “about the perpetrators or the crime,” as well as “the spread of false information.”
But inflammatory statements and the spread of false information do not violate federal law. As Volokh explains:
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.
Thus, the federal prosecutor has threatened 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” and/or “false” statements. I agree with Volokh that this looks like an attempt to chill constitutionally protected speech through the threat of federal prosecution.
The attempt, not surprisingly, is undertaken in service of President Obama’s refugee resettlement agenda. Volokh proposes the following thought experiment:
[I]magine that the political valences were different. Imagine that there was an allegation of an unnamed white police officer sexually assaulting a young girl, and imagine that there were stories — even highly inaccurate ones — circulating online accusing the police department of covering up the assault, which led to threats to local government officials. And imagine that a U.S. attorney in the Bush administration made a public statement saying, among other things, that “We have seen time and again that the spread of falsehoods about police officers divides our communities,” and that “The spread of false information or inflammatory or threatening statements about the police officer or the crime itself reduces public safety and may violate federal law.”
I take it that many people would rightly demand that, when calling for calm and accuracy, the U.S. attorney shouldn’t say things that threaten criminal prosecution for allegedly “inflammatory” or even “false” statements. The same, it seems to me, applies here.
Unfortunately, however, for the modern American left, free speech is a a one way street whose direction is determined by its political and policy preferences.