The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Though the First Amendment generally bars the government from making speech criminally punishable, constitutionally protected speech can be used as evidence in determining what a person did, and why he did it. For instance, "I hate Catholic priests" is constitutionally protected speech; but if the speaker is suspected of murdering a Catholic priest, the speech can be used as evidence that he had motive to commit the crime, and that he therefore was the person who committed the crime. (Naturally, to prove guilt beyond a reasonable doubt, the prosecution would need more evidence of guilt than that; the evidence is just admissible, not dispositive.)
Likewise, say that Hans Haupt is being prosecuted for treason, on the grounds that he harbored his son, a Nazi saboteur, when the son came to the U.S. on a Nazi submarine. To prove that someone is guilty of treason, the government must show that the defendant acted with a purpose of helping the enemy (and not just with the purpose of being hospitable to his son). And to do that, the government is entitled to introduce evidence of the defendant's past pro-Nazi speech. Indeed, without such evidence of speech, it's hard to see how the defendant's purpose could be proved. (That's Haupt v. United States (1947).) A person's constitutionally protected speech can also often be relevant evidence in hate crime prosecutions, discrimination lawsuits, and many other cases.
But sometimes the speech is pretty poor evidence. That might be happening in many cases where rap videos are introduced as evidence, and that apparently happened in Thursday's district court decision in U.S. v. Robertson (M.D. Fla.). An excerpt of the background facts:
Robertson is a 46-year-old Muslim imam and Islamic scholar, who also goes by the name Abu Taubah. He grew up in New York but now resides in Orlando, Florida with his two wives and 15 children. He enlisted in the United States Marine Corps in 1986 and was discharged from active duty in 1990.
From 1991 to 1995, Robertson was incarcerated for his role in a violent crime spree by a gang known as "The Forty Thieves," of which he was a leader. Robertson personally participated in more than a dozen armed robberies, and shot and killed several men. After his arrest, he provided substantial assistance to the United States government, resulting in a significant reduction in his sentence. Robertson contends that he continued cooperating with the government for a number of years thereafter, including while he lived abroad in Mauritania and Egypt.
In 2010, Robertson took under his wing Jonathan Paul Jiminez, an unemployed 26-year-old with a drug problem and a history of mental health problems. In 2011, a friend of Robertson's prepared an income tax return for Jiminez that "reflected business income of $15,500 and three dependent children, resulting in a tax refund of $5,587. Jiminez was shown to be living at Robertson's address, and the document was filed from Robertson's computer. The return was false: Jiminez had not earned $15,500 in business income, and the children claimed as dependents were Robertson's, not his." Robertson was found guilty of income tax fraud, and also of an unrelated charge of gun possession by a felon.
So far, so good—but the government argues that the tax fraud wasn't just ordinary tax fraud, but tax fraud "intended to promote a federal crime of terrorism." If proved at sentencing by a preponderance of the evidence, that would sharply boost the likely sentence from under a year in prison to ten years in prison.
According to the prosecution, the terrorism enhancement applies because the fraudulent tax refund was intended to support "the operation of a travel facilitation network, with members in New York and Orlando, that sends individuals overseas, specifically to Mauritania … to commit violent jihad." With regard to the latter allegation, the prosecution argues that Robertson spent seven months instructing Jiminez in, among other things, "killing, suicide bombing, and identifying and murdering United States military personnel … to advance the cause of violent jihad."
Robertson had studied the Koran in Mauritania, and had a friend who operated a school for teaching the Koran there; Robertson acknowledged that he wanted to send Jiminez there, too, but he says just to study the Koran, not to train for jihad.
Much of the prosecution's evidence came from Jiminez's recorded conversations with someone who turned out to be a government informant; the judge concluded that, while the evidence shows "that Jiminez wanted his friend to believe that he was in the process of becoming—to use the vernacular—a badass," "there is almost no support for the notion that Robertson was helping him to do so."
We turn then to the remaining evidence, which mostly consisted of Robertson's readings:
The prosecution argues that Robertson holds extremist religious views and that proof of this was found on his computer, which was seized when Robertson was arrested. Specifically, the prosecution points out that Robertson's computer contained copies of roughly 20 works authored by militant Islamic extremists such as Anwar al-Aulaqi, a leader and recruiter for al-Qaeda; Abu Hamza, a cleric who encouraged fighters to join al-Qaeda and is currently serving a life sentence in federal prison on numerous terrorism charges; and Abu Muhammad al-Maqdisi, reputedly the most influential living jihadi theorist.
It is true that these works espouse extremist beliefs and justifications for the commission of violence in the (putative) service of Islam. Several of the works describe the United States as a great oppressor of Islam; others exhort believers to fight or kill heretics or those who do not follow Islamic law; and some argue that democracy is not in accord with Islam.
(You can see the prosecution's argument yourself in this brief.) But the court was skeptical (some paragraph breaks added):
But what the prosecution has failed to show is that Robertson shares these extremist beliefs. The 20-or-so works were part of a 10,000-document Islamic library accessible via Robertson's computer. There was no evidence produced that Robertson ever accessed these particular documents, much less that he took their extremism to heart.
Even if the prosecution had shown that Robertson actually read the works in question, it would provide little support for application of the terrorism enhancement. The Government has never disputed Robertson's claim of being an Islamic scholar. It is not at all remarkable for an Islamic scholar to study, among many, many others, the writings of Islamic extremists.
A person's reading material may sometimes be relevant evidence of his knowledge or beliefs. But I would hope that all of us have the experience of reading some things we disapprove of—sometimes precisely so we can figure out how to argue against them. It seems that here the evidentiary value of Robertson's possessing these works is quite slight.
The government also argued (I quote here from its brief):
About 10 days after Jimenez's arrival, the following Google entry was found in the internet history of the defendant's computer: "origin of the word assasin." [footnote: The word "assassin" was misspelled by the person who typed it. ] The internet history of the defendant's computer also shows a Wikipedia entry, around that same time, for Ḥashshashin, which is the Arabic term for assassin.
The government seems to be trying to tie this to Jimenez's "describing the defendant's plan of training him to become an assassin to a cooperating source (CS-1) of the FBI" at around the same time. But as the court concluded, "This is even less noteworthy than the fact that Robertson had access to some extremist texts on his computer." Even if it was Robertson who searched for the origin of "assassin," or was reading about the Hashshashin, that seems to me to tell us very little about whether he was indeed training Jimenez to be an assassin. (Jimenez's statement does tell us something about it, but the court concluded that Jimenez was untrustworthy on this; and Robertson's etymological and historical inquiries do not, I think, materially buttress Jimenez's story.)
Maybe the prosecution's conjecture is right, and Robertson was indeed trying to help Jimenez and others become jihadis. But the evidence about Robertson's electronic bookshelf and about his etymological and historical inquiries does not, I think, support that conjecture; the judge was right to discount it.