The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
1. As I mentioned Sunday, Idaho U.S. Attorney Wendy J. Olson—the chief federal prosecutor in Idaho—released a statement prompted by the Twin Falls child sexual assault controversy. On June 2, a 5-year-old girl was allegedly sexually assaulted at a Twin Falls, Idaho, apartment building by three boys ages 7, 10 and 14. The exact nature of the sexual assault is unclear; but apparently the 7-year-old sexually touched the girl, and it seems that the 10- and 14-year-olds are being charged because they put the 7-year-old up to this; they also apparently video recorded the incident. The boys may be Sudanese and Iraqi refugees whose families resettled in Idaho; officials are reported as saying that the boys have been in the United States for less than two years, but it's not clear whether the families are refugees.
In the weeks after the report, online and local rumors misreported some elements of the alleged crime—the boys were misidentified as Syrian refugees, and the incident was described (apparently incorrectly) as a gang-rape at knife-point, with the children's fathers cheering the events after they happened. And the stories claimed that Twin Falls authorities were inadequately investigating and covering up the attacks, something that seems not to be so. (Many of the details of the crime haven't been released, but this apparently stems from the general policy of not releasing such details in cases involving juvenile suspects.) These stories led to threatening emails and phone calls to local officials' offices. As best I can tell from news accounts, there was no such coverup, though many of the details of the investigation were indeed kept confidential because the alleged attackers were juveniles.
2. In response, on Friday the U.S. Attorney's office released a statement that said, in relevant part (emphasis added),
The United States Attorney's Office extends its support to the five-year-old victim of assault, and her family, at the Fawnbrook Apartments in Twin Falls. The United States Attorney's Office further encourages community members in Twin Falls and throughout Idaho to remain calm and supportive, to pay close attention to the facts that have been released by law enforcement and the prosecuting attorney, and to avoid spreading false rumors and inaccuracies….
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. I urge all citizens and residents to allow Mr. Loebs and Chief Kingsbury and their teams to do their jobs."
That, I think, went beyond calling for accuracy (and trying to deter threats, which are indeed criminally punishable). Instead, it suggested that there could be federal prosecution even for "inflammatory" statements "about the perpetrators or the crime"—which are generally protected by the First Amendment—and for "the spread of false information," which could also be constitutionally protected (especially if the falsehoods are honest mistakes).
3. I'm happy to say that today, Olson released a follow-up statement (thanks to the Idaho Statesman for the pointer):
Many in the press, public and online bloggers are misinterpreting the statement I issued on Friday, June 24, 2016, in support of the five-year-old victim of an assault in Twin Falls, Idaho, and in support of the law enforcement authorities there who are prosecuting the case. The statement was not intended to and does not threaten to arrest or prosecute anyone for First Amendment protected speech.
I issued the statement because public officials in Twin Falls have received threats. Certain threatening or harassing communications may violate federal law and will be investigated. I am also concerned that intentionally false and inflammatory rumors are creating an unsafe environment in Twin Falls. In this case, it appears that the threats have resulted from false and inflammatory information spread about this crime, often times by those from outside of the community. I encourage all to be patient while the juvenile justice system works. I also encourage all to support this victim and her family.
It seems to me that the original statement—"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"—was indeed correctly interpreted as suggesting that the spread of false information or inflammatory statements, and not just threatening statements, "may violate federal law." But I'm glad that the follow-up statements is written much more narrowly.
Most of us agree that "inflammatory" statements are bad, as is spreading false information about alleged criminal and alleged governmental wrongdoing (of course, as we understand what's true and false, and as we define "inflammatory"). But having the government threaten federal prosecution for such speech is worse.
4. I should note that some "harassing" (but not threatening) "communications" to public officials are protected by the First Amendment. The leading case on this is U.S. v. Popa (D.C. Cir. 1999), involving racist voice-mail messages left for then-U.S.-Attorney (and later U.S. Attorney General) Eric Holder. Ion Popa was prosecuted for telephone harassment for leaving those messages, and indeed phoning people just to say offensive things to them is often punishable harassment (see this article for more). But because Popa was calling a high-level official, on matter of public concern, the court held that the speech was constitutionally protected.
The "political speech of one who intends both to communicate his political message and to annoy his auditor—an auditor who might be his elected representative or [a high-level appointed official]—from whom the speaker seeks redress" is constitutionally protected, the U.S. Court of Appeals for the D.C. Circuit held, even if it's "inten[ded] to annoy, to abuse, or to harass." True threats of criminal conduct are punishable; but mere harassing communications to high-level officials are constitutionally protected.
I thus wish that Olson had limited her follow-up statement to true threats of criminal conduct, and didn't also suggest the possibility of federal prosecution of an ill-defined range of "harassing communications." Still, the revised statement strikes me as much better than the original.