What You Don’t Know Can Hurt You

The peril of vague criminal statutes

The Soviet Union enacted an infamous law in 1922 that criminalized “hooliganism.” The crime was in the eye of the beholder, the beholder of consequence being the Soviet secret police. Because it was impossible for dissidents to know in advance whether they were violating this prohibition, they were always subject to arrest and imprisonment, all ostensibly according to law.

In the United States, we have legal safeguards against Soviet-style social controls, not least of which is the judicial branch’s ability to nullify laws so vague that they violate the right to due process. Yet far too many federal laws leave citizens unsure about the line between legal and illegal conduct, punishing incorrect guesses with imprisonment. The average working American adult, going about his or her normal life, commits several arguable federal felonies a day without even realizing it. Entire lives can change based on the attention of a creative federal prosecutor interpreting vague criminal laws.

Mail Fraud for Art Supplies

Consider the federal prohibition of “mail fraud,” which mainly describes the means of a crime (“through the mails”) rather than the substantive acts that violate the law (“a scheme or artifice to defraud”). In 2004, Steven Kurtz, an art professor at the State University of New York in Buffalo, was indicted on mail fraud charges for what boiled down to a paperwork error. Federal agents, after learning that Kurtz was using bacteria in his artwork to critique genetic engineering, launched a full-scale bioterrorism investigation against him. Finding nothing pernicious about the harmless stomach flora, they resorted to a creative interpretation of the mail fraud statute. Because Kurtz had ordered the bacteria through a colleague at the University of Pittsburgh Human Genetics Laboratory, his “scheme” to “defraud” consisted of not properly indicating on the order form that the bacteria were meant for his own use.

Or consider the Computer Fraud and Abuse Act, a 1986 law whose prohibitions—accessing a computer “without authorization,” for example—have been stretched to cover a wide swath of activity never envisioned when the bill was passed. In 2008, federal prosecutors in Los Angeles won a conviction in an online harassment case based on the theory that violating a website’s “terms of service” is a crime under this law. Thankfully, the judge rejected this interpretation and threw out the jury’s conviction.

The most dangerously far-reaching statutes tend to result from knee-jerk congressional reactions to the threat du jour. Stopping bullies, for example, is all the rage in legislatures as well as classrooms, especially given all the new ways Americans can transmit unpleasant messages. In April 2009, Rep. Linda Sánchez (D-Calif.) proposed the Megan Meier Cyberbullying Prevention Act, which would have made it a felony, punishable by up two to years in prison, to transmit by electronic means any message “with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person.” Sánchez named the bill after a 13-year-old Missouri girl who took her own life in 2006 after being taunted by a middle-aged woman who had assumed the online identity of a teenage boy (which led to the aforementioned online harassment case). Testifying in favor of the bill at a September 2009 hearing, Judi Westberg Warren, president of Web Wise Kids, said “speech that involves harm to others is wrong.”

That may be so, but using the criminal law to punish upsetting messages is also wrong, as well as inconsistent with constitutional freedom of speech. At the same hearing, testifying on behalf of the Cato Institute, I pointed out that the bill’s open-ended language extended far beyond adolescent (or middle-aged) bullies. Reporters, lawyers, even members of Congress are tasked daily, by virtue of their jobs, with what the bill defined as “cyberbullying.” A scathing online exposé, a stern letter emailed to an adversary, or a legislator’s principled stand articulated on Facebook might well cause someone, somewhere, to experience emotional distress. Prosecutors easily could argue that such a foreseeable effect was intended. And what about the time-honored American art of parody? If this law were passed, would Stephen Colbert be pulled off the air?

Fortunately, these and other common-sense objections seemed to hit home; the bill never made it out of committee, and it died with the 111th Congress. But the setback hasn’t stopped anti-bullying advocates, who last year introduced the Tyler Clementi Higher Education Anti-Harassment Act in response to yet another high-profile tragedy, the 2010 death of a Rutgers freshman who killed himself after his roommate secretly recorded his sexual encounter with another man. Although the bill, which was reintroduced this year, would not create any new criminal provisions, it would dramatically expand the civil concept of peer-on-peer “harassment” at colleges and universities that accept federal funds. The archives of the Foundation for Individual Rights in Education, a nonprofit organization that I co-founded and currently chair, provide ample evidence that the elastic concept of harassment on campus is already the most abused tool in suppressing campus speech and expression.

While Congress has not passed anti-bullying legislation yet, it did react to the financial collapse of 2008 with a complex law that transforms many non-fraudulent financial practices into felonies. The 848-page behemoth known as the Dodd-Frank Wall Street Reform and Consumer Protection Act introduced dozens of new federal offenses, many of which do not include the crucial requirement of criminal intent. For instance, the bill criminalizes any “trading, practice, or conduct” that disregards “the orderly execution of transactions during the closing period.” It also criminalizes the practice commonly known as “spoofing”—bidding or offering with the intent to cancel before execution. The Commodities Futures Trading Commission will have to define “orderly executions” and decide when a canceled bid or offer amounts to “spoofing.” In other words, dense, changeable rules issued by an unelected regulatory body will determine the difference between a legitimate trader and a felon.

Peaceniks for Terrorism

The federal ban on providing “material support” to a terrorist group, the statute that the federal government uses most frequently in prosecuting terrorism cases, provides another example of how difficult it can be to stay on the right side of the law. In 1998 the Humanitarian Law Project (HLP), a human rights organization based in Los Angeles, asked a federal judge whether the material support ban, which was first enacted in 1996, applied to its planned nonviolent advocacy on behalf of the Kurdistan Workers’ Party in Turkey, which appears on the State Department’s list of “foreign terrorist organizations.” The HLP wanted to train the group’s members on how to peacefully resolve disputes through international law, including methods to obtain relief from the United Nations.

Although the HLP’s plans were limited to offering advice and training aimed at avowedly peaceful ends, the answer to its legal question was by no means clear. Originally enacted as part of the 1996 Anti-Terrorism and Effective Death Penalty Act, which passed with broad bipartisan support following the Oklahoma City bombing, the material support statute has been amended several times, most notably by the 2001 PATRIOT Act, which added prohibitions on providing “training,” “expert advice or assistance,” and “personnel.” HLP President Ralph Fertig did not want to risk a prison sentence in finding out what the various provisions meant.

Fertig got his answer about a dozen years after initially seeking authoritative guidance, when the Supreme Court ruled that the material support law did indeed cover instruction in peaceful advocacy. In a 6-to-3 decision handed down in June 2010, the Court ruled in Holder v. HLP that the statute was not unconstitutionally vague and did not violate the right to freedom of speech or freedom of association. Writing for the majority, Chief Justice John Roberts reasoned that helping terrorist organizations to resolve disputes through international bodies or obtain humanitarian relief from the United Nations inevitably would free up resources for other, more nefarious ends. Hence a “person of ordinary intelligence would understand” that such conduct constitutes “material support.”

In a vivid illustration that the material support ban is not nearly as clear as Roberts claims, Georgetown law professor David Cole, who represented the HLP before the Supreme Court, pointed out in a January 2011 New York Times op-ed that several hawks in the War on Terror may have unwittingly violated the statute. By speaking at a December 2010 conference in Paris organized by supporters of the Mujahedeen-e-Khalq, an Iranian opposition group, former Attorney General Michael Mukasey, former Homeland Security Secretary Tom Ridge, former National Security Adviser Frances Townsend, and former New York City Mayor Rudolph Giuliani arguably coordinated their speech with a “foreign terrorist organization” and therefore, by the Supreme Court’s logic, provided it with “material support.”

These examples show that vague laws threaten Americans from all walks of life and all points on the political spectrum. Yet that depressing fact is actually encouraging, because it suggests the possibility of a broad coalition in support of much needed legal reforms, beginning with the basic principle that, absent a clearly stated prohibition, people must not be punished for conduct that is not intuitively criminal, evil, or antisocial. Otherwise we risk creating a modern American equivalent to the ban on hooliganism. 

Harvey A. Silverglate (has@harveysilverglate.com), a criminal defense and civil liberty lawyer in Boston, is the author of Three Felonies a Day: How the Feds Target the Innocent (Encounter Books), which was just published in paperback. Kyle Smeallie helped him research and write this piece.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Paul||

    But if legislators don't legislate, what else are they supposed to do?

  • fish||

    Die?

    Ooops...just violated sumtin!

  • Easy Peasy||

    Laws should expire after 30 years. That would give them something to do.

  • Edwards and DeLay||

    Get convicted under overly enthusiastic interpretations a vague laws that they helped to pass.

    What else?

  • Ron||

    Maybe not be full-time "legislators"? How about they meet once a year at a conference and adjust the laws as needed, and then otherwise go about their business with normal jobs.

  • 0x90||

    An indecipherable profusion of law is functionally equivalent to no law at all.

  • MrGuy||

    "Ignorance of the law is no excuse".

  • Brett L||

    *unless you're a cop.

  • sarcasmic||

    That's just a perk of the job.
    Cooks eat for free, car salesmen don't own their own vehicle, law enforcement may ignore the law...

  • DK||

    Not true. The latter requires no judicial apparatus. The former requires a bewildering number of lawmakers, judges, and attorneys. I prefer the former.

  • ||

    In a vivid illustration that the material support ban is not nearly as clear as Roberts claims, Georgetown law professor David Cole, who represented the HLP before the Supreme Court, pointed out in a January 2011 New York Times op-ed that several hawks in the War on Terror may have unwittingly violated the statute. By speaking at a December 2010 conference in Paris organized by supporters of the Mujahedeen-e-Khalq, an Iranian opposition group, former Attorney General Michael Mukasey, former Homeland Security Secretary Tom Ridge, former National Security Adviser Frances Townsend, and former New York City Mayor Rudolph Giuliani arguably coordinated their speech with a “foreign terrorist organization” and therefore, by the Supreme Court’s logic, provided it with “material support.”

    Yeah, but that would require that laws apply to our betters in government, when its been proven time and time again that they don't.

  • ||

    It seems to me people increasingly don't like the real world they live in and insist on having their own version

    Right. Your person of ordinary intelligence know how to use the Rube-Goldberg reasoning (AKA legal reasoning) the Court uses.

  • ||

    Hence a “person of ordinary intelligence would understand” that such conduct constitutes “material support.”

    OK. So I fucking fail at copying text.

  • RADIOACTIVE||

    better to just keep your mouth shut and your eyes and ears closed...another episode of DWTS please.

  • sarcasmic||

    In the United States, we have legal safeguards against Soviet-style social controls, not least of which is the judicial branch’s ability to nullify laws so vague that they violate the right to due process.

    What about nullifying laws that are in direct conflict with the restrictions put upon the government by the Constitution?

    Seems to me the role of the judiciary to defend laws from those who claim they violate the Constitution, while tossing the occasional crumb to make it look like they believe the Constitution is more than a quaint piece of history that no longer applies in the modern world.

  • ||

    well,...that was kind of sarcastic

  • Richard Head||

    No doubt there are way too many laws on all kinds of BS, but I'd like to see some evidence for this:

    "The average working American adult, going about his or her normal life, commits several arguable federal felonies a day without even realizing it. "

  • ||

    read the book... three felonies a day

  • ||

    Have you read the book? Would like to hear your thoughts on it. I have not yet read it but read a review which said the book gives some anecdotal accounts, but no real evidence that the average person really commits 3 felonies a day.

  • Richard Head||

    Hyperbole is okay as long as one's motives are pure.

  • ||

    it IS hyperbole, but the underyling point is valid (overbroad all encompassing federal laws). i'm not justifying it in a dan rather "fake, but accurate" way. i am just saying if you ignore the title, it's a good book

    kind of like many reason articles (like the one that claimed a woman was convicted pot possession when in fact it was for growing dozens of pot plants)

  • Harvey Silverglate||

    Richard Head should take a look at my book, THREE FELONIES A DAY: HOW THE FEDS TARGET THE INNOCENT, just out in paperback, for dozens of examples/evidence of this proposition -- that much normal daily activity can be squeezed into some federal felony statute. HARVEY SILVERGLATE

  • ||

    fwiw, the vast majority of these types of laws ime are federal laws. most of the really bad stuff at the state level is war on domestic violence stuff (a war i have long argued is more injurious to the average innocent joe than the WOD's) like cyberstalking laws, and all sorts of incredibly overbroad vague crap. volokh.com has remarked on a # of these laws

    imo, my state's cyberstalking law is obvious overly broad/vague/unconstitutional

  • ||

    In my state (GA) it is illegal to carry a "knife designed for the purposes of offense or defense." Try figuring that one out. And yes the state supreme court has upheld it.

  • fish||

    Might I suggest carrying it as a fabulous fashion accessory!

  • ||

    If you zip-tied the knife to your penis, would that be considered "carrying"?

  • fish||

    Additional 1st amendment protection as modern art! If you can work urination into the deal you're golden (pun intended I suppose)!

  • Brett L||

    What's the difference between that and putting it in my boot?

  • ||

    You can't do both?

  • Brett L||

    Sure, but who wants to cut their pant-leg every time they need a knife?

  • ||

    Kilt. Problem solved.

  • fish||

    Just think of something arousing....let it bust out on its own.....I mean it's got a knife strapped to it after all.

  • ||

    Maybe. Might be difficult to deploy it fast and if I did they'd probly put me on a sex offender registry and I'd be looking for a nice bridge.

  • sarcasmic||

  • OO||

    boing!

  • ||

    I don't get the megan fox lust. Twenty-something brunette with tattoos: there's millions of them.

  • DK||

    But she's really trashy looking!

  • ||

    @ Paul: They can go home.

    @0x90: You are quite right. For a mind bending example, read The Trail by Kafka.

  • Rock Action ||

    We had a professor assign us "Before the Law" and "An Imperial Message" to be read in sequence. I actually laughed when I got to the end. I didn't think there was any other reaction one could have. The stories also serve as metaphors for other things, but they're still interesting when taken literally. I never did read the full text of The Trial. For anyone interested. It seems appropriate to this topic...

    http://records.viu.ca/~johnsto.....thelaw.htm

    http://www.math.uchicago.edu/~abert/imperial.htm

  • Fist of Etiquette||

    I am citizen's arresting this entire blog.

  • fish||

    I'm resisting! Strike me repeatedly...while wearing the high heels this time.

  • RADIOACTIVE||

    and a litle bandit mask...woo hoo.

  • Brett L||

    Also: TSA & ICE Team up to search buses, trains, and ferries. Only those who don't know Iron Law of Bureaucracy surprised.

  • ||

    You me'd that all up, dude.

  • Brett L||

  • Cliché Bandit||

    well damn! Who would have seen this coming?

  • ||

    THERE IS NO SLIPPERY SLOPE!

  • ||

    the justification of a slippery slope argument is directly proportional to where you are in the underlying argument

    for medical mj proponents, it is NOT a slippery slope to legalization, for example

    for pot prohibitionists it is.

    whether it ACTUALLY is, is irrelevant. people choose their side.

    fwiw, i am a mj legalization advocate who (because i am honest) readily admits that medical MJ *is* a slippery slope to mj legalization/decrim, and most medical mj advocates who WON'T admit it are lying to others, if not themselves.

  • Brett L||

    I'm just gonna have this one little bump of power... then I'll quit.

  • Brett L||

    I learned it by watching you!

  • fish||

    Anatomically correct reproductions of male sex "objects" must be carried in checked baggage, as they could be used aboard an aircraft as weapons.

    With threats like that mentioned above, who could possibly complain about the stepped up search and surveillance activity.

    http://www.sfgate.com/cgi-bin/.....M.DTL&ao=2

  • Boxbot||

    Crisis averted:

    DELTA AIRLINES FLIGHT CRASHES INTO STATUE OF LIBERTY; Experts say hijackers used smuggled dildos to subdue passengers and crew

  • fish||

    With threats like that mentioned above, who could possibly complain about the stepped up search and surveillance activity.

    Sorry...bad sentence!

  • ||

    My all time favorite law addressing the all time worst federal offense:

    "Federal Law prohibits standing forward of the white line while bus is in motion".

  • np||

    All laws should be tested, vetted for Constitutional muster (e.g. going through heavy philosophical exercises of "what ifs", testing for unintended consequences, etc) before being enacted, rather than having to wait for standing in order to be challenged (and even then, that depends if the SC even wants to hear your case, not to mention the Federal courts).

    If I were writing the constitution, I'd definitely make that a requirement, so Congress, and especially states do just go around making laws on a whim.

  • Number 2||

    The problem with Silverglate is that while he diagnoses the problem accurately, the solution he offers is simply urging laws to be better written. The real solution is to oppose the urge to pass laws in the first place.

  • LTEC||

    It seems to me that the "peaceful" activities of terrorist groups are just attempts to leverage their violent activities. They are saying, "Give us what we want peacefully, and that way we won't have to kill you." It is just another version of good-cop/bad-cop.

  • Aimeng Crystal Jewelry||

    After reading this article, I know "What You Don’t Know Can Hurt You " , yeah,
    IT'S TRUE!!

  • Aimeng Crystal Jewelry||

    everybody has it's unknown things, they will all die!

  • ||

    Nobody here's ever going to click that link, so why don't you pack up your shit and get the fuck out?

  • ||

    Totalitarians want to rule "criminals".

  • قبلة الوداع||

    ThaNk U

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