Free Speech

Calling Informants "Snitches" May Be a Federal Felony

That's so regardless of whether the statement is seen as a true threat or incitement—and it applies to any "harmful" speech "inten[ded] to retaliate" against anyone giving law enforcement "any truthful information" related to a federal crime.

|The Volokh Conspiracy |

Title 18 U.S.C. § 1513(e) of the witness retaliation statute provides,

  • "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,
  • "shall be fined under this title or imprisoned not more than 10 years, or both."

This doesn't require any proof that the speech was a constitutionally unprotected "true threat" of violence or vandalism, or unprotected speech intended to and likely to incite imminent criminal conduct. It's enough if sharp criticism is intended to retaliate (i.e., is motivated by testimony or a report to the government), and if it "harms" people in a broad sense, including by making people not want to do business with them. Publicly condemning a local businessman for calling the police about someone's being an illegal alien—or for reporting on a person's technical violation of a federal gun law—could thus be a felony, if one intends that people shun him as a result.

And U.S. v. Edwards, a nonprecedential decision handed down Thursday by the Sixth Circuit, read it precisely this way: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….

In 2015, D.B. agreed to work with law enforcement as a confidential informant against two brothers in the town of Steubenville, Ohio. These two brothers, Fred and David McShan, were suspected of running a drug-trafficking operation. D.B. wore audio and video surveillance equipment while performing controlled buys from the McShan brothers. As a result of D.B.'s assistance, law enforcement indicted the McShan brothers on multiple charges, including conspiracy to possess with intent to distribute heroin. D.B. also testified at the McShan brothers' trial.

The trial took place in Columbus, Ohio, 150 miles from Steubenville. D.B. testified in an open, public courtroom. A number of Steubenville residents attended the trial. During the trial, United States Marshals had to remove several of the McShan brothers' relatives and friends from the courtroom for recording witness testimony and taking pictures of witnesses, including D.B., on the stand. A jury found both brothers guilty and the district court sentenced Fred to 288 months in prison and David to 74 months in prison.

Several months after the trial, Steubenville residents began posting on the social-media website Facebook pictures of D.B. testifying at the trial. Among the people to do so was Joy Edwards, a sister of the McShan brothers. Over the course of several days, some of her online activity included:

  • 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

Edwards did not capture any photos of D.B. at the trial, nor did she create any of the images herself. She primarily re-posted others' images and added her own captions. Her Facebook page was set to "Public," meaning that any one of her more than 600 Facebook friends could share her posts and anyone on Facebook could view them. These Facebook posts by Edwards and others revealed and broadcast D.B.'s name, nickname, location, family members, and his cooperation with law enforcement—in addition to generating numerous other derogatory comments by other persons in the Steubenville area….

Edwards waived her right to a trial by a jury. At the bench trial, … DEA Special Agent Heufelder testified that law enforcement considers the label "snitch" to be a threat to its informants. D.B. testified about how his life changed after the Facebook posts, including his increased difficulty in seeing his children, decreased employment opportunities in the area, and his fear for his safety and for the safety of his family….

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":

Intent. Intent may, and generally must, be proven with circumstantial evidence. There is no question that Edwards's posts were in response to D.B.'s testimony. She repeatedly referred to D.B. as a "snitch" and a "rat." When asked in the comments section by a friend who D.B. was [in context, the commenter was basically asking Edwards, "Why are you posting this?"], Edwards shot back that he "snitched on [her] brothers" and that she thought he lied about them. She also posted that "His bitch ass needs some WD40!"

The district court found credible the government witness's testimony about the increased risk of harm associated with the label "snitch." The trier of fact "is free to infer the intent to retaliate from the natural consequences likely to flow from the defendant's actions." Given the context of the Facebook posts, particularly the negative comments about D.B. that were generated by the posts, a rational trier of fact could easily conclude beyond a reasonable doubt that someone who continued to engage in that activity intended the foreseeable negative consequences. Indeed, the district court found that "there is no competing or other purpose for which Defendant's postings were made, other than to retaliate." …

Edwards complains everything she communicated online was both accurate and already public knowledge. Again, this has nothing to do with whether Edwards intended to retaliate against D.B by disseminating allegedly true and accurate information….

Causation. Edwards concedes D.B. suffered harm from the collective Facebook posts. But because numerous other people posted (often much worse) things about D.B., Edwards argues, her posts alone cannot be sufficient evidence to establish that she caused D.B.'s harm…. [But] there was evidence of close temporal proximity between Edwards' Facebook posts and the subsequent harm suffered by D.B., making it possible for a rational trier of fact to determine that § 1513(e)'s causation element was satisfied.

Although D.B. conceded that some Steubenville residents knew about his cooperation with the government before Edwards posted on Facebook, he also claimed that "[w]hen the photos got posted, that's when mostly the drama picked up." D.B. testified that he received "a lot of friend requests" from strangers on Facebook after Edwards posted, which caused him to feel "a little intimidated" and to doubt whether he "could safely return to Steubenville." He also feared for the safety of his family, especially given that his little sister received a threat after Edwards posted on Facebook in May of 2017. In light of these concerns, D.B. reduced the frequency of his family visits and refrained from living with family members in Steubenville….

Now it seems to me that, read as broadly as it is written, the statute violates the First Amendment. Cases such as NAACP v. Claiborne Hardware Co. (1982) make clear that speech intended to retaliate against people, and even harm them economically (and risk leading to violent attack against them), is constitutionally protected: There, it was speech by black activists retaliating against black citizens who refused to boycott white-owned businesses, but for First Amendment purposes retaliation for lawful (indeed, constitutionally protected) purchasing behavior can't be different from retaliation for passing information to the police.

The District Court had rejected the First Amendment argument, concluding that the statute is constitutional because "criminalizes speech only upon proof that the defendant intended to retaliate against a witness"; but I think that can't be right—an intent to retaliate doesn't strip otherwise constitutionally protected speech (again, speech that need not fall within any First Amendment exception, such as for true threats or for incitement) of constitutional protection.

Unfortunately, according to the Sixth Circuit, "Edwards abandoned her First Amendment overbreadth claim on appeal." As a result, the court declined to consider the First Amendment issue:

Nothing in this opinion should be construed to comment on whether § 1513(e) is overbroad or violative of the First Amendment. That issue was neither brought nor briefed before us.

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.

NEXT: America's Golden Door Is Slamming Shut

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  1. Laws like that are a perversion; you can’t change people’s instincts that easily, and snitches are almost universally disliked and untrusted, even by those for whom they snitch. Even snitches don’t like what they do; why else would cops have to offer so much immunity and favors to get even the lowest of thugs to snitch?

    1. why else would cops have to offer so much immunity and favors to get even the lowest of thugs to snitch?

      Because the lowest of thugs is generally not motivated by anything other than self-interest?

  2. But he is a snitch. Isn’t truth an absolute defense in free speech?

    1. Unfortunately, according to the Sixth Circuit, “Edwards abandoned her First Amendment overbreadth claim on appeal.” As a result, the court declined to consider the First Amendment issue

    2. My understanding is that truth only matters in libel, slander, defamation, and so on. Ask Chelsea Manning how much truth matters when the powers that be pull the national security chain, and ponder how much state power is invested in 50 years of the War on (Some) Drug (Users). I suspect that interfering with state thugs, no matter how truthful, runs into judges who believe first and foremost in preserving state authority.

    3. +100

      This is what happens when you let lawyers run this country.

    4. ” Isn’t truth an absolute defense in free speech?”

      No, you can be punished in both civil and criminal courts for saying something that is true.

      On the criminal side, publish some national secrets, and you can only be punished if they ARE true. Then, over in civil court, there’s publication of misappropriated trade secrets, or publication of private information. You can be punished in both civil AND criminal courts for publishing actual nude photos of 12-year-olds.

  3. Who says that Congress is dysfunctional? The people‘s representatives are always prepared to put partisanship aside and work together to enact laws like this one, which I had never heard of before, to strengthen the hand of law enforcement vis-a-vis the citizenry.

  4. One has to wonder why Edwards abandoned the First Amendment claim on appeal. The trial court rejected it

    The statute, consistent with [Virginia v. Black], criminalizes speech only upon proof that the defendant intended to retaliate against a witness. It is the scienter requirement of the statute that renders it constitutional.

    But Virginia was about cross-burning, threatening conduct with an expressive component, and held that

    Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.

    and

    The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.

    That would seem to be readily distinguishable from the retaliatory but non-threatening speech at issue here.

    1. Yes. If the statue from the OP required that the speech be intended as a threat to the witness, then it would be constitutional, just as cross-burning intended to convey a threat is.

    2. “One has to wonder why Edwards abandoned the First Amendment claim on appeal.”

      I’d guess it was by mistake. Second guess, his lawyer thought that other arguments were better, and had a page limit.

  5. While Eugene Volokh struggles to strengthen a nearly non-existent distinction between “retaliation,” and “incitement,” I suggest he is turning a blind eye to weaponized publications on the internet. It could not be more obvious—as in this case—that many instances of weaponized internet publications—by which I mean publications which single out a particular named target, and encourage a targeted mass reaction—intend harm to the target. To anyone alarmed by that, Volokh’s habitual 1A fundamentalism leads him to reply, in effect, “So what, there has always been speech which intended harm, and that has been rightly protected by law.”

    At times, Volokh suggests that harsh criticism of public figures, for instance, is an example to prove the point. Such criticism has been intended to cost such people their jobs, their reputations, and the esteem of the public, amounting to great harm. And yet that criticism has been fully protected. So why not like protection for weaponized speech published on the internet?

    Two reasons why not:

    1. Before the internet, the targets of weaponized speech had to be at least noteworthy enough to warrant expensive ink-on-paper publication of charges against them. The issues particular to the target had to command attention among a public segment habituated to paying for publications, and judging their contents. The publisher had little chance of achieving lasting anonymity, and knew it.

    Today’s world-wide publication of weaponized speech is nothing like that. World-wide publication is available for free to anyone with a grudge, and access to a library keyboard. The intended audience can be homogeneous, and thanks to internet software, may be selectively assembled among individuals who are gullible, uncritical, and emotionally unstable. Practical anonymity for publishers is within reach. Weaponized publishing targets can be anyone, not typically just public figures, as in the past. Targets can be people with no connection at all to public life. They can be, by happenstance, the aggrieved publisher’s neighbors, his neighbor’s children, specific members of disfavored groups or races, or economic competitors of the weaponizer.

    2. The publishing era to which Volokh reaches for many of his precedents was an era of edited publications. Legal responsibility for defamation required private editors to know their contributors, and to guard against irresponsibility. Editors had to read every syllable prior to publishing. Publishing was expensive, and publishers typically had a reputation to defend, and money at stake. Almost everything which today leads to weaponized internet publication would, under that former regime, have been excluded from publication. Advocates who favor weaponized speech may see the change toward less practical restriction as a good one. They reckon without considering a growing public backlash.

    Whatever may be published under its auspices, with trivial exceptions, Facebook has nothing at stake, edits nothing, and publishes everything without ever reading it. That means every falsehood, deception, defamation, and scurrilous attack on a non-public person always gets published. Any correctives (which are rare) have to be applied after publication, after the damage is done, and, mostly, after correction will do any good.

    Volokh, along with a great many internet commenters, has not thought through the implications which new technology and changed business models have brought to the world of publishing. Customs and legal precedents tailored to fit bygone practices do not apply usefully to a new-made world which operates differently.

    Either the new-made publishing world must be remade to match previous customs and precedents, or the customs and precedents must be updated to match the new publishing reality—including the reality of abusively weaponized published speech.

    In a changed world, 1A fundamentalism, built to match a previous need, no longer matches today’s need. The profusion of cases Volokh cites in succession ought to suggest that to everyone.

    Make it a point to notice: few if any of those cases features a fact pattern which was even realistically possible in the world from which Volokh’s precedents derive. That suggests something about the relevance (or irrelevance) of the legal analyses and precedents Volokh urges.

    Without ongoing public support, a free press is a practical impossibility. Re-assertions of pro-free-press ideology—even ideology codified as law—cannot provide a practical substitute for the people’s needed organic support for press freedom.

    The internet has brought the question of press freedom near to a tipping point, which should not go ignored. Open calls for government censorship of the internet are common abroad, and increasingly common in America, including in congress, and on this blog. Indeed, most of the cases Volokh cites here provoke an array of comments, arguing pros and cons among rival schemes of government censorship, with little else suggested except to do nothing. So far, Volokh’s advocacy shows little sign that he understands the problem, or notices the danger such responses imply.

    1. So how is the Internet in that regard any different from, in their times, the telegraph, the radio, motion pictures, and television? Each in its turn Was perceived as something unique and dangerous because it was unprecedented. The supreme court in the 1910s held at motion pictures did not warrant First Amendment protection because moving pictures had an effect on the human brain that mirror words allegedly did not. All new technology evolves and adjustmen was perceived as something unique and dangerous because it was unprecedented. The supreme court in the 1910s held that motion pictures did not warrant First Amendment protection because moving pictures had an effect on the human brain that we are words allegedly did not. The Internet is just the latest in a long line of technological innovations that ultimately people accepted within the rubric of free speech and Free Press.

      1. Number 2, in that long line of innovation you mention, there were also innovations in publishing—radio and television, for instance, which you mentioned yourself. Contrary to what you seem to suggest, publishing companies which exploited newer media were treated alike with other means of publishing which preceded them, such as books, newspapers, magazines, pamphlets, etc. Especially with regard to the key question of liability for defamation, all publishers were treated generally alike—television news, alike with newspapers, enjoyed no freedom to defame.

        What is historically noteworthy about internet publishing companies, is that they have not been treated uniformly with their legacy predecessors. Instead, internet publishing companies have been specially privileged by government, notably with regard to immunity from defamation. That was an unwise government decision, and has had troublesome consequences.

        Three such consequences stand out:

        1. Giantism. Internet publishers, because they are free to publish contributions without reading them, are free from one of the principle constraints on growth which restrict legacy competitors. Editing is expensive and difficult. No-editing means less expense and difficulty. It frees an internet publishing company to grow without limit, buy up potential competitors, and eventually exploit network effects to occupy nearly the whole of the national business space for publishing. Thus has our society transitioned from a thriving market for a vast diversity of publications, to a distorted market comprising an ever-shrinking number of legacy publishers, struggling against internet giants numbering, at most, in the low double digits. Never since the printing press was invented has there been such a concentration of publishing power in so few hands.

        2. Quality of content. The need to read everything to prevent being sued for libel had a salutary extra effect on legacy media. It made it practical to compete on the basis of content quality, because doing so would not expose a publisher to an expense which his rivals would not also incur. The rivals, too, had to read everything. The notion of quality became diversified, and publications tailored for particular markets developed specialized expertise to serve unique audiences. Overall, the result came to be regarded as one of the principal ornaments of civilization. By contrast, internet publishers, who read little or none of their content, compete for advertising dollars on the basis of giant audiences, and software algorithms to segment the audiences, and little else. Internet publishers lack even the will to compete on the basis of quality. But the internet publishers’ outsized power in the advertising market does undermine revenue sources for legacy publishers who do strive for quality. Thus, the number of the latter dwindles continuously, and takes with it the special values they brought to publishing.

        3. Press freedom. Because they can defame without consequence, and because of monopolistic-seeming control of access to publication, internet publishers have come under assault like no previous publishers ever have. Their detractors have various complaints, but seem to agree that whatever should be done, it should be done by means of government controls on publishing. This nation has never seen as broad-based a demand that publishers be censored by government as the currently growing pro-censorship wave is poised to deliver against internet publishing.

        1. ” Instead, internet publishing companies have been specially privileged by government, notably with regard to immunity from defamation.”

          Dimwit, internet publishing companies aren’t specially privileged with immunity from defamation. Like any other company, they can be sued for defamation if they defame someone. What they can’t be sued for is if SOMEONE ELSE defames someone. Which, come to think about it, is also true of all the other companies.

          1. Which, come to think about it, is also true of all the other companies.

            Pollock, I believe you claim to be a lawyer (please correct me if I am mistaken). Either your argument is not forthright, or you, the lawyer, is the lawyer dimwit. I’m guessing it’s the former.

            Presumably, as a lawyer, you were taught about joint liability, shared by publishers and contributors alike. That doctrine still applies to ink-on-paper publishers, to broadcasters, and in fact to every kind of publisher except internet publishers, which were absolved from it by congress with the unwise passage of Section 230.

            1. “Pollock, I believe you claim to be a lawyer (please correct me if I am mistaken).”

              Number of times I have claimed to be a lawyer: 0.
              (Hint: I am an IT professional. I am not, and have never claimed to be, licensed to practice law).

              This is typical of the level of your analytical skills, which coincidentally also appears to be 0.

            2. The distinction between traditional publishers like newspapers and Internet services should easily be distinguishable.

              The newspaper selects and edits the items it publishes. Most news papers even edit letters to the editor before publishing them.

              The Internet service provider offers an open forum for individuals to make comments on their own, without the service providers intervention.

              1. If the publisher (Internet or otherwise) adopts the statement as its own, they can be held liable.
                What section 230 does is allow an Internet publisher to remove or edit some comments, without thereby creating an assumption that it has adopted the ones NOT edited or removed. That’s all it does.

              2. Yep. I don’t think we get to sue a newspaper for false advertising if it publishes an advertisement that isn’t correct.

                1. Junkie, better check with some lawyers. It can be a complicated issue, but that’s not right.

                2. False advertising and defamation aren’t the same thing.

              3. Without the service provider’s intervention, rsteinmetz? You mean, no intervention except for providing every essential tool of online publishing, from software, to servers, to a pre-assembled world-wide audience—which the publisher recruits and then monetizes by sale of advertising? That kind of non-intervention? It is not happenstance that Section 230 was a response to a court ruling that conduct of that sort made one a publisher.

                The argument that congress somehow created a non-publishing class of enterprises which behave exactly like publishing enterprises, is of course ridiculous on its face. What congress did in fact was single out for special exemption from liability a particular mode of publishing, while leaving all other publishing modes burdened as before.

    2. So your solution to the government prosecuting people for seemingly protected speech is to have the government prosecute Facebook too?

      1. No.

      2. No, it’s just his usual dumb pro-censorship screed based on his complete misunderstanding of the law, past and present,¹ his failure to grasp the concept of censorship, as well as his staggeringly stupid idea that Facebook should be broken up so that millions of newspaper editors (of which he used to be one) can have jobs. Combined with his weird idea that his pro-censorship position is some growing movement.

        ¹There’s only so many times one can explain to someone the difference between distribution and publishing before concluding that the ignorance is deliberate and willful.

        1. Once again, Nieporent is a guy who insists, straight faced, that private editing is censorship. If I am a publisher, and you offer me something to publish, and I decline to to publish it, Nieporent says I censored you.

          1. Uh, yeah. He says that because it’s true.

            1. Pollock, so by not doing what you demand, I become a censor? This issue looks to become the death of the republic. It has already become the death of reason.

              1. No, Stephen, by censoring you become a censor.

                By introducing straw men into an argument, you become a poor debater.

                By refusing you admit when you’re wrong, you become an American.

          2. Even if you were right about what you just said, that’s not what you have been proposing. You have been proposing that the government punish publishers who don’t decline to publish things.

            You have repeatedly lauded a legal regime which in your view did just that, and have whined incessantly that this should be the way it works online.

            1. Notice how he doesn’t reply to that.

              1. I did not reply because your second sentence reads like gibberish. Couldn’t understand what you were trying to say. Couldn’t relate what you did say to anything I advocate.

                1. ” Couldn’t relate what you did say to anything I advocate.”

                  Your own admission that you are extremely poor at analysis supports my earlier claim that you are extremely poor at analysis.

                  You don’t understand what section 230 does nor how it works, and you insist on repeatedly broadcasting your lack of understanding.

                  1. Okay, Pollock, smart guy. You tell me what Nieporent’s second sentence means, and how it relates to anything I advocated. Here it is. Have at it:

                    You have been proposing that the government punish publishers who don’t decline to publish things.

                    If you can even untangle it, I will be especially interested in whatever you can reference from my comments about, “the government punish publishers.” That is exactly the opposite of what I have repeatedly said, which has been, right along, that Section 230 is leading the public to demand government censorship. That, I always oppose, and say so.

                    I get that you, and Nieporent, think private editing is somehow government censorship. I mostly pass that by without comment. It is self-discrediting, without need of help from me. But if you want to go ahead and repeat it a few more times, by way of explaining what’s bugging you, be my guest.

                    Something about this exchange has put me in mind of a previous dust-up, involving Loki and some ankle biter. Loki finished it perfectly, with, “You will always be you.” Step right up, if you want to.

                    1. ” You tell me what Nieporent’s second sentence means, and how it relates to anything I advocated. Here it is. Have at it:”

                      What would be the point of that. You’ve had things explained to you, multiple times, and nothing changes in your misinformation.

                      “I get that you, and Nieporent, think private editing is somehow government censorship.”

                      See? MORE very poor analysis on your part. You just aren’t capable.

                    2. Hint: When you have to lie about what the person you’re debating said in order to continue the debate, it’s a pretty strong sign you’ve already lost.

  6. This strikes me as similar to the hostile environment theory of discrimination. Just like otherwise protected speech can be illegal if it creates a hostile work environment and forms the act of discrimination, protected speech can become illegal if it intended to retaliate against a witness.

    Presumably, if your wife testifies against you and you sleep with, or flirt with, another woman with intent to retaliate against there, the sex or flirtation is a crime.

    And if your priest testifies against you, and you retaliate against him by changing religions, your religious conversion becomes a crime. It really make you wonder how dumb you have to be to be a judge.

  7. 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.

    Why would anyone choose a Bench Trial? Judges tend to be corrupt assholes who are not going to show you mercy WHEN they do convict you.

    At least with a jury, your lawyer can explain how people have a 1st Amendment right to say whatever they want if they dont threaten others with violence or injury their character.

    The truth is an absolute defense to Defamation and this “victim” was a snitch.

    1. Why would anyone choose a Bench Trial? Judges tend to be corrupt assholes who are not going to show you mercy WHEN they do convict you.

      It looks like this defendant raised a somewhat technical defense, challenging whether the government could prove any marginal increase in “harm” to the informant based on the defendant’s actions. I could understand why the defense might have thought a judge would be more likely to ignore the defendant’s unsympathetic actions and focus closely on the elements of the statute.

      At least with a jury, your lawyer can explain how people have a 1st Amendment right to say whatever they want if they dont threaten others with violence or injury their character.

      There is absolutely no possibility that a federal judge would allow a defense attorney to make this argument to the jury.

    2. The truth is an absolute defense to Defamation

      The prosecution wasn’t for defamation, so this is irrelevant.

  8. Do snitches on bitches have stars upon thars?

  9. “Now it seems to me that, read as broadly as it is written, the statute violates the First Amendment.”

    But is it applied that way? Seems to me that if it requires a finding of actual harm, and not just a theoretical one, that’s what takes it out of the protection of the First Amendment. (the old challenge of dividing speech into “speech” and “action”… which leads to a great deal of debate without much resolution, in most cases.)

  10. This is a terrible anti-free-speech opinion. Its odd logic could easily be used to prosecute any person, including a news commentator, who criticizes any informant even a little, if the informant as a result gets shunned by others.

    The only good thing here is that this is an unpublished opinion, so it won’t be used as binding precedent to suppress future speech.

    1. “Its odd logic could easily be used to prosecute any person, including a news commentator, who criticizes any informant even a little, if the informant as a result gets shunned by others.”

      In your hypothetical, the defendant is not guilty. The scienter element wasn’t met.

  11. The law says “any action”, which could be read to apply to speaking. (In addition to all sorts of things like declining to hire such person, or firing them, or other such things.) But once you read it to apply to speaking, then you get the overbreadth concern. (Yes, I saw defendant waived it on appeal.) Which seems severe.

    So shouldn’t the appropriate thing to do be to, as a matter of constitutional avoidance, read the statute to not apply to retaliation that is speech? Anyone care to explain to me why this reading wouldn’t be permitted or would otherwise be wrong?

  12. What about synonyms? i.e. betrayer blabbermouth canary double-crosser fink informer informant narc nark rat sneak snitcher source squealer stoolie tattler tattletale tipster turncoat weasel whistle-blower deep throatstool pigeon

    1. Snitches get stitches. Betrayers get… layers? Maybe prayers?

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