Free Speech

Release Condition: "Defendant May Not Attend any Other Protests … or Public Gatherings in … Oregon" 

Some people arrested in Portland for misdemeanor failure to obey a lawful order have had these conditions imposed as a condition of being released before trial. But the law related to such conditions is surprisingly complex.

|The Volokh Conspiracy |

[UPDATE: The condition has been dropped, though other potentially unconstitutional conditions remain.]

What seem to be the latest developments, from Fox23 (Rebecca Boone & Jack Bleiberg):

U.S. court officials in Oregon are reviewing bans on future protesting that were placed on some people arrested during protests in Portland after some raised concerns that the prohibitions violated the First Amendment.

"We're reviewing every case again right now and looking at the wording of some of the conditions," Brian Crist, chief pretrial services officer for the U.S. District Court in Portland, said Wednesday. "A lot of this I think will be resolved."

Crist said he couldn't comment on individual cases, but he noted the court looks at each defendant individually and doesn't have "blanket conditions" that are placed on everyone….

The protest bans, first reported by ProPublica, were imposed in at least a dozen cases — most of them involving misdemeanor charges of failing to obey a lawful order. Defendants had to agree to the prohibitions in order to be released from jail while they await trial.

Some of the protest bans were hand-written in the court documents, others were typed out: "Defendant may not attend any other protests, rallies, assemblies or public gatherings in the state of Oregon," many of the release documents read.

I did a bit of research, and the matter is a bit complicated.

[1.] Generally speaking, the government has a good deal of latitude in imposing conditions on convicted defendants who are released on probation and parole, including conditions that restrict defendants' speech or association. One way of thinking about it is that the people have been convicted and could be in prison, where their First Amendment rights can be sharply restricted.

[2.] Courts have at times also imposed similar conditions on people who have been indicted (based on a finding of probable cause that they committed a crime) and are awaiting trial. One can imagine a rule saying that you can't be deprived of liberty at all until you've been found guilty beyond a reasonable doubt, whether by being locked up or by being subjected to pretrial release conditions; but that's not what our legal system has adopted.

Thus, for instance, in U.S. v. Collins (N.D. Cal. 2012), several defendants were indicted for interfering with PayPal computers (via a distributed-denial-of-service attack), as retaliation for PayPal's blocking of service to Wikileaks. The court upheld a pretrial release condition barring the defendants from using Internet Relay Chat (IRC), because the defendants had used IRC to coordinate their attacks:

While any limitation on free speech must be imposed cautiously, and each defendant retains the presumption of innocence during the pretrial period, the IRC restriction in this case furthers a compelling government interest in protecting the public from further crimes coordinated through a means specifically addressed by the grand jury in the language of the indictment. The condition operates in a content-neutral fashion. The condition does not restrict political or any other discourse by any other means, even by use of other internet services such as email, blogging services such as Tumblr, chat other than IRC, or social networks such as Facebook or Google+. All of this suggests to the court that a restriction on IRC use, while permitting substantial internet use for purposes that include political discourse, strikes a reasonable balance between the legitimate and yet competing interests of the parties….

The court also notes that the condition does not impose any burden greater than associational and other First Amendment-impacted restrictions routinely imposed by courts as a condition of pretrial release. See, e.g., United States v. Spilotro (8th Cir. 1986).

But the court set aside the Twitter use condition:

The indictment makes no mention of Twitter whatsoever…. In the absence of any indictment charge, any evidence, or even any specific proffer of such illicit activity [using] Twitter, the court is not persuaded that the restriction advances any legitimate interest in protecting the public's safety or prevent any defendant from fleeing. Under these circumstances, any illicit use of Twitter by any defendant may be adequately addressed by the monitoring approved elsewhere in this order.

(See also U.S. ex rel. Means v. Solem (D.N.D. 1977), which struck down a much broader, content-based speech restriction.)

The court also rejected a First Amendment challenge to a focused release restriction in U.S. v. Murtari (N.D.N.Y. 2008),

For an extended period Murtari has engaged in various activities in and around the Federal Building [in Syracuse, N.Y.] apparently calculated to draw attention to his cause, in which he advocates for fathers' rights, and to lend support to his efforts to secure a meeting with Senator Hillary Clinton with the intent to elicit her assistance…. As a result of earlier encounters, defendant has been banned from  entering the Federal Building without permission, other than for required court appearances, and has been arrested on numerous occasions by security personnel assigned to the facility. While the majority of his arrests prior to those now at issue have resulted from the defendant's entering onto the Federal Building premises and refusing to leave when ordered to do so, some have also involved his refusal to obey explicit directions that he not write in chalk on government property adjacent to the Federal Building.

In connection with two of these prosecutions, a magistrate judge had issued a pretrial order forbidding Murtari from "even entering peaceably onto federal property." But this, the court said, was permissible:

Without question, a defendant who is under court supervision, including based upon a conditional pretrial release order, does not necessarily forfeit all of his or her First Amendment rights. Consequently, in fashioning suitable conditions to govern the defendant's release pending trial on the various charges against him in this case, the court was required to do so in a manner which would result in no greater intrusion upon defendant's constitutional rights, including those guaranteed under the First Amendment, than reasonably necessary in order to effectuate the objectives of the Bail Reform Act, and to additionally insure defendant's compliance with the court's order.

The order issued by Judge DiBianco on September 7, 2007 undeniably restricted defendant's access to a forum which otherwise would be available to him, as a member of the public, for certain activity protected under the First Amendment. That order was issued, however, based upon specific findings by the court that defendant had previously been charged and convicted of engaging in criminal conduct at the Federal Building and had "indicated that he can not assure the Court that he will not engage in identical conduct during the pendency of [the criminal proceedings in which that order was issued]." Under those circumstances I find that the order issued by Judge DiBianco was reasonable and was limited to encroaching upon defendant's First Amendment rights only to the extent necessary based upon his findings….

Finally, one more example, from U.S. v. Brown (D. Ariz. 2008):

Defendant has been indicted for receiving and possessing child pornography; hence, probable cause exists that Defendant committed these sexually-related  crimes. Mr. Emerick testified that "there is a relationship between viewing sexually explicit pornography depicting consenting adults … and the potential for viewing child images and/or committing hands-on offenses against children." In view of that relationship, the pretrial release condition that "[t]he defendant shall not access via computer or possess any photographs or videos of sexually explicit conduct …" is a condition that will further protect the public from Defendant, while on pretrial release.

Such a condition directly serves the Government's "legitimate and compelling" pretrial goal of protecting the public, and constitutes only a limited abridgement of Defendant's First Amendment rights for a relatively short period of time [citing a probation condition case, and Murtari].

[3.] I couldn't find any Supreme Court case or appellate case dealing specifically with speech-restrictive pretrial release conditions, but U.S. v. Scott (9th Cir. 2006) dealt with pretrial release conditions that limited defendant's Fourth Amendment rights. (The conditions had allowed warrantless random drug testing and warrantless home searches of people who have been released pending trial.) It was a controversial, 2-1 decision, with seven judges dissenting from denial of rehearing en banc; but Judge Alex Kozinski's panel majority opinion had this to say:

[There is a] "… well-established principle that parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public" … [based on] the "transformative changes wrought by a lawful conviction and accompanying term of conditional release," and the "severe and fundamental disruption in the relationship between the offender and society, along with the government's concomitantly greater interest in closely monitoring and supervising conditional releasees," occasioned by a conviction and imposition of release conditions….

But Scott, far from being a post-conviction conditional releasee, was out on his own recognizance before trial. His privacy and liberty interests were far greater than a probationer's. Moreover, the assumption that Scott was more likely to commit crimes than other members of the public, without an individualized determination to that effect, is contradicted by the presumption of innocence: That an individual is charged with a crime cannot, as a constitutional matter, give rise to any inference that he is more likely than any other citizen to commit a crime if he is released from custody. Defendant is, after all, constitutionally presumed to be innocent pending trial, and innocence can only raise an inference of innocence, not of guilt.

While the Supreme Court has upheld the constitutionality of pretrial detention on grounds of dangerousness, the Court stressed that the statute it was upholding contained important safeguards, including the requirements that defendant be accused of a particularly serious crime and that dangerousness be proved to a neutral judicial officer by clear and convincing evidence. See Salerno.

Neither Salerno nor any other case authorizes detaining someone in jail while awaiting trial, or the imposition of special bail conditions, based merely on the fact of arrest for a particular crime. To the contrary, Salerno was explicit about what must occur under the federal Bail Reform Act—beyond arrest—before a pretrial criminal defendant could be detained: "In a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person."

Thus, the Supreme Court upheld the constitutionality of a bail system where pretrial defendants could be detained only if the need to detain them was demonstrated on an individualized basis. The arrest alone did not establish defendant's dangerousness; it merely triggered the ability to hold a hearing during which such a determination might be made.

It follows that if a defendant is to be released subject to bail conditions that will help protect the community from the risk of crimes he might commit while on bail, the conditions must be justified by a showing that defendant poses a heightened risk of misbehaving while on bail. The government cannot, as it is trying to do in this case, short-circuit the process by claiming that the arrest itself is sufficient to establish that the conditions are required. {Prior convictions and other reliably determined facts relating to dangerousness may be relevant to [a constitutionally adequate individualized determination that might justify certain conditions], but the mere fact that the defendant is charged with a crime cannot be used as a basis for a determination of dangerousness.}

[4.] So here's my sense of the matter: Courts seem to be open to allowing some pretrial restrictions closely related to the crime of which the defendant is accused, if there's reason to think that the defendant poses a particular danger of committing the crime (or closely related ones) again. But the restriction needs to be quite narrow; as Prof. Aaron Caplan noted, the "public gatherings" ban would apply to church services and other events that are far removed from the behavior of which the defendants are accused. (At the same time, the breadth of the restriction might be tied to the desire to keep it "content-neutral," as Collins suggests.) And, under Scott, there would need to be an individualized determination that the person is quite likely to commit such crimes—a determination that would require some evidence beyond just his being accused of such a crime in the current case.

My sense is that this is a pretty significant bar, which the government might not be able to surmount in many cases. At the same time, it's also a pretty vaguely defined bar, so one can't speak with clear confidence of this; and it's closely tied to the particular facts of each case, so it's hard to speak about it categorically.

Perhaps this legal rule is wrong, and the government shouldn't be able to restrict people's First Amendment activities based just on their having been accused of a crime—regardless of the link between the restriction and the alleged criminal conduct, or of the evidence that the defendant is likely to reoffend. Perhaps such restrictions should be allowed (if at all) only on a conviction by proof beyond a reasonable doubt. But, rightly or wrongly, our current legal rule seems to be rather more complex and uncertain than that.

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    1. Well, it doesn’t take a release condition to make it illegal for people to continue to riot while awaiting trial: It’s a crime for anyone to riot, whether they are awaiting trial. Whether defendants charged in Portland federal court (just charged at this point) should be allowed to continue to protest while awaiting trial is a different matter, no?

      1. People accused of domestic violence are routinely ordered to maintain distance from their accuser.

        Why shouldn’t people accused of participating in “unlawful assemble” in the vicinity of the court house be prohibited from being in the vicinity of the court house? Especially in consideration of the courthouse still beng under siege.

        I perdict that within a couple of days the courthouse in Portland will be occupied or burnt out.

        1. “People accused of domestic violence are routinely ordered to maintain distance from their accuser. ”

          Among others, a difference might be that assembly is a constitutionally protected right.

          1. Isn’t freedom of movement also a constitutional right?

            1. “Isn’t freedom of movement also a constitutional right?”

              unenumerated, unlike the rights at question here.

        2. “People accused of domestic violence are routinely ordered to maintain distance from their accuser. ”

          So order the arrestee to stay away from uniformed cops?

        3. “I perdict that within a couple of days the courthouse in Portland will be occupied or burnt out.”

          It’s not all accessible from the street. You can get to the jury assembly area through a regular door, but to get to the USA’s office and the AUSAs’ offices you need a keyfob to activate the elevator even if you smash the doors to get to the elevator foyer. I imagine it is as hard to get to the judges’ chambers as well, but I don’t have direct experience with those.

          1. “…but to get to the USA’s office and the AUSAs’ offices you need a keyfob to activate the elevator even if you smash the doors to get to the elevator foyer.”

            No you don’t — a simple large screwdriver will permit you to pry the outer doors open and give you access to the shaft. Google “Elevator Surfing” for an interesting perspective….

            And then, do you have any idea what dumping 20-50 gallons of water (i.e. a trash can full) down an elevator shaft will do?!?

            There are a lot of open relays, many of them 480 volts, and it will make quite a mess. Worse, all of your building electrical (and Telephone/Computer) wiring are run up the elevator shaft. Codes now are increasingly requiring it to be inside (expensive) Schedule 40 steel pipe to protect it from fire, but that wasn’t usually required in the 1990s.

            Yes, the GSA did tighten up its own specs after the Murrah Building, but that was 1995 and this building may predate the new regs. And you don’t know what has been done later — IT today is a far cry from what it was 25 years ago when the building was built, and you don’t know how nonchalantly that was done.

            I’m not saying anything that these perps don’t already know, if they get to that elevator lobby and want to, they can do a LOT of damage to that building. Even taking out the computer network (which I am not saying how to do as they may not know how) would render the building useless, wouldn’t it?

            1. Also, code requires a staircase alternative to the elevator, usually multiple staircases. They may be behind locked doors but these aren’t bank vaults — they are designed for firefighters to be able to force open and if you don’t mind breaking stuff, you can access them too.

            2. “No you don’t — a simple large screwdriver will permit you to pry the outer doors open and give you access to the shaft.”

              How does “access to the shaft” give you access to upper floors if you are not Spider-Man?
              I’ll concede that it gives you the ability to throw yourself in the basement, if that’s what you wanted to do. The jury waiting area is down there, but you can get there from the main entry.

              I know about the jury waiting area because I was called to jury service in that courthouse, and I know about how to get to the USA’s office because when I was in law school, the acting USA for Oregon taught my second-semester Con Law class.

            3. ” taking out the computer network (which I am not saying how to do as they may not know how) would render the building useless”

              I don’t believe you know how, either, and certainly not from the elevator foyer.

              1. In the old days, it was common to use 10Base5 cable in the elevator shafts because it is very durable, highly resistant to inducted current, and permits longer cable runs. You can “break the network” by cutting the cable anywhere along its length, but that’s a non-trivial task. You can do it readily if you can take a hacksaw to it, or a boltcutter, but if you have to do it with improvised tools, that cable is tough. Newer implementations would substitute 100BaseF or 1000BaseF, in which case all the previous discussion is accurate except that A) it is not just resistant to inductance of current, it’s immune, and B) it’s very easy to break the cable, since it’s made of glass.

                In a modern implementation is backed by wireless networking, so taking out the network segment in the elevator just causes a failover to the wireless network.

      2. Can a person awaiting trial for armed robbery be banned from his second amendment rights while waiting?

        1. “Can a person awaiting trial for armed robbery be banned from his second amendment rights while waiting?”

          Maybe. Probably depends on what state he’s in.
          He can be restricted in his ability to carry while he’s on trial, for sure.
          If he’s being held in the jail waiting for trial, they definitely restrict his right to carry a weapon.

        2. “person awaiting trial for armed robbery be banned from his second amendment rights”

          In Massachusetts, a *civil* restraining order for domestic violence (Chapter 209A) includes a gun confiscation.

          1. Has there been any change in the ratio of restraining order beneficiaries murdered by firearm since this law became effective.
            If it has gone down, that sounds like a compelling government interest. You know, that thing they’re supposed to have if they want to restrict a Constitutional right?

            If the rate hasn’t gone down, why hasn’t a firearms-enthusiast group sought to get it overturned? That sounds like the sort of thing they’d be interested in. Or do they not want to admit that some of their members might be DV abusers?

      3. Just found it interesting to see the view of someone on the operational side of these issues. Not sure that you two are that far apart.

      4. ” it doesn’t take a release condition to make it illegal for people to continue to riot while awaiting trial: It’s a crime for anyone to riot, whether they are awaiting trial.”

        It’s procedurally faster to lock someone up for violating pretrial release conditions than to convict them of a separate crime and then lock them up pursuant to the sentence for the conviction.

        So if they DO go back to riot, they’ll get locked up for the violation of the release condition directly, and likely won’t be out doing it a third time, unless the protesters storm the Bastille.

      5. Respectfully, Prof. Volock, I don’t recall seeing anything about a right to protest in the Constitution — I do remember a “right to peaceably assemble for redress of grievances” but that, I’d argue, is something quite different from “protesting.”

        1. The 1A does not have a “right to peacably assemble for redress of grievances.” The right to “petition the Government for a redress of grievances” is independent of the right to peacably assemble. So if you think “protesting” is not a subset within “peacably assemble”, what is it you think “peacably assemble” means, exactly?

          1. “o if you think “protesting” is not a subset within “peacably assemble”, what is it you think “peacably assemble” means, exactly?”

            The problem is what do you mean by “protesting.”

            A protest certainly falls under asemble, but the right isn’t just a right to assemble, it’s a right to peaceably assemble.

            In my opinion, the protests in Portland have not been “peacable”

            It’s not peacable when your assembly denies other users access to and/or use of a public space, such as a park or a public road.

            Blocking traffic is not peaceable.

            Vandalism is not peaceable.

            1. For this discussion it doesn’t matter what I mean by “protesting”. What matters is what the judge issuing the condition means. If a judge issues an order saying “Defendant shall not peacably assemble, including peaceful protests that do not involve blocking traffic or vandalism” the court is probably going to have to make some factual determinations to bolster that broad condition, to make it constitutionally permissible. If the court issues an order saying “defendant shall not protest, which includes any speech critical of the President” then that’s overbroad. If the court issues an order that prohibits participation in all protests, anywhere, under any circumstances, probably overbroad.

            2. “In my opinion, the protests in Portland have not been ‘peacable'”

              So not one person in Portland has been protesting peacably? Fine, there’s also a right to petition the government for a redress of grievances which does not require peace, nor does the right to freely speak.

            3. “Blocking traffic is not peaceable.”

              Nonsense. You can do it without moving. What’s more peaceful than an action you can take without moving a muscle? When people have died, we consign them to the grave with the admonition to “rest in peace” and then we don’t let people drive through the gravesite.

              “Vandalism is not peaceable.”
              Vandalism is directed at property. Which is, in most cases, not a threat to people. I mean, if you happen to be underneath the statue of Saddam when the people pull it down, you can be squished, and if the fire spreads from the burning cross in your yard you can get burned. Neither one is quite the same level of unpeace as pointing a firearm at someone and saying you’re going to shoot.

  1. They limit peoples ability to go to certain places or even use the internet for all sorts of silly reasons all the time and nobody crys about that. What makes guys who want to destroy federal court buildings so special?

    1. Fascism is just around the corner in America! We have to stop it – by any means necessary! Who cares about property rights or civil liberties when a modern day Shoah is occurring in Trump’s concentration camps. I would not mind locking up or intimidating every neo-Nazi white bigot to save one Hispanic person’s life.

      1. “Fascism is just around the corner in America!”

        And the “protesters” in Portland and Seattle are the ones bringing it.

  2. There is considerable precident for ordering persons charged with domestic abuse not come into contact to their alleged victim. Why couldn’t similar conditions apply to people charged with vandalizing a specfic piece of property?

    1. There is also a First Amendment right to attend other sorts of gatherings yet we’ve banned all those and there hasn’t been anywhere near the moaning that we’ve gotten to protect these riots.

      Unless you’re one of those guys who thinks the Founding Fathers wrote a special super First Amendment in invisible ink for protestors pulling down their statures centuries later.

      1. I tend to think a prohibition on “all assemblies” is overbeoad. However a prohabition to be within 500 yadred of the a “Federal Courthouse” might be acceptable.

        1. FYI: Your Russian-English translator is producing a lot of typographic errors.

          1. Its my tablet. I’m home on lock down, someone in my office was exposed to Covid.

    2. They can, but the conditions have to be narrowly drawn when they infringe on constitutional rights. A condition that says “You may not damage federal buildings” is narrow. A condition that says “You may not protest at location X” is somewhat narrower, but probably not good enough. A condition that says “You will refrain from speaking ill of the government on Facebook” is definitely overbroad. A condition that says “You will write nice things about President Trump twice a week and post them on Twitter” is also overbroad, but you’d be here defending it.

  3. “One can imagine a rule saying that you can’t be deprived of liberty at all until you’ve been found guilty beyond a reasonable doubt, whether by being locked up or by being subjected to pretrial release conditions; but that’s not what our legal system has adopted.”

    I think we should, more or less, adopt that rule. The degree to which we accept pretrial detention makes a mockery out of the notions of due process and the right to trial by jury.

    We shouldn’t get to punish people until they are convicted. And we routinely effectively punish people through pretrial detention or conditions on pretrial release.

    Pretrial detention should only be allowed in the rarest of circumstances. And when it is allowed, we should have to make whole anyone who was detained pretrial and then not convicted of any charge which was used to support the request for pretrial detention. (I’m not sure whether a defendant should be allowed to give up the right to be made whole as part of a plea bargain.) There should be rates set by statute for such situations – e.g., $10,000 for the first day of detention and $2,000 for each additional day. Then not-convicted defendants should be able, if they wish to, to argue that the actual damage was greater.

    1. The flip side is what the Anti Nuke protesters understood — it involves significant logistics to feed & house large numbers of people, so refusing bail is a tactical weapon.

      1. Yet Jane Fonda was participating in daily protests at the US Capitol. She reported that after a few days there devoloped a routine where Capitol Police arrested the protesters, gave them summons and releasdes the.m

      2. Love to have a tactical weapon against protesting.

        1. “Love to have a tactical weapon against protesting.”

          Tear gas is such a weapon. I recall the Chinese deployed tanks to clear Tianenmen Square. The Russians used all sorts of weapons against protesters in Hungary and Czechoslovakia. Trump used the Park Police to clear himself enough room for a photo op. There’s no shortage of tactical weapons against protesting.

          1. Comparing whatever happened in DC — for whatever reason(s) it did — to what the ChiComs did in Tienanmen Square or what the Soviets did in Hungary and Czechoslovakia is simply repulsive.

            I trust that you can agree that the Park Police weren’t dumping bodies into unmarked graves…..

            1. “Comparing whatever happened in DC — for whatever reason(s) it did — to what the ChiComs did in Tienanmen Square or what the Soviets did in Hungary and Czechoslovakia is simply repulsive.”

              All three used tactical weapons to clear out the protests… that’s an objective fact. The leadership in all three cases was thoroughly repulsive. Not one of them was American.

      3. “The flip side is what the Anti Nuke protesters understood — it involves significant logistics to feed & house large numbers of people, so refusing bail is a tactical weapon.”

        That insight comes from the Civil Rights movement. “Fill up the jails” is a direct MLK quotation.

    2. A couple of weeks ago, an 11 year old in D.C. was killed in the crossfire of a gang disagreement. The three men arrested all had pending firearms possession by a felon charges, and all had been released. Pretrial detentions didn’t work too well there.

      1. “all had been released. Pretrial detentions didn’t work too well there.”

        Connect these two things.

  4. The only effect of a ruling (if one should happen later) overturning this condition would be that Oregon officials would be forced to admit that the so-called protests are really planned riots.

  5. I don’t see the issue — prohibition on consuming any amount of alcohol is a common condition, and I don’t see how this is any different.

    1. 1. There is a First Amendment right to attend protests; there is no constitutional right to consume alcohol.

      2. I can’t speak to all courts or all trials, but 18 U.S.C. sec. 3142, which sets forth some commonly used pretrial conditions, lists ordering the defendant to “refrain from excessive use of alcohol.” Can you point to some more details on when “consuming any amount of alcohol is a common condition”? I have seen some cases involving that, but they seemed to involve particular factors, such as a history of convictions for alcohol-related misconduct. See, e.g., U.S. v. Forney (“Prior to her original sentencing, and while on pre-trial release, Forney was arrested for and pleaded guilty to driving while impaired by alcohol. The district court was therefore justified in concluding that the standard condition, prohibiting only excessive consumption of alcohol, would not be sufficient to further the goals of sentencing. “).

      1. There is also a First Amendment right to attend other sorts of gatherings yet we’ve banned all those and there hasn’t been anywhere near the moaning that we’ve gotten to protect these riots.

        Unless you’re one of those guys who thinks the Founding Fathers wrote a special super First Amendment in invisible ink for protestors pulling down their statures centuries later.

        1. AmosArch: The ban on large gatherings is an extraordinary, emergency measure justified by the existence of a pandemic; I’m not sure that it’s a good precedent for justifying restrictions that could continue to be imposed indefinitely, for anyone who engages in misdemeanor misbehavior at a protest.

        2. I think Amos is the one reading a special super First Amendment (exception) in invisible ink for ‘hippies he doesn’t like.’

      2. 1: I’d argue that the _Roe v. Wade_ decision, which was based on a penembural right of privacy, would cover the right to the “peaceful enjoyment” of any lawful product, be it alcohol or greasy food.

        2A: *Any* (not excessive) use of alcohol (with random testing) was a standard probation condition for UM undergrads released on bail. I understood it when it was an alcohol-related offense (e.g. OUI), but it appeared to be a universal condition for any alleged offense (e.g. union-related building takeover).

        2B: There is an interesting re-opening of a 2007 police shooting in Maine. Interesting in multiple dimensions because the officer reportedly had 20-400 vision uncorrected (20-200 is “legally blind” — the “E” on the top of the eye chart) and that is the cutoff for any law enforcement position in Maine. And it is more complicated because all three occupants of the vehicle were underaged.

        As I understand it, the officer observed an odor of alcohol on the breath of the *passenger*, whom he knew to be on probation, and attempted to arrest him for that. And no, I am not making this up, see: https://www.pressherald.com/2019/06/09/officials-want-investigation-into-deadly-2007-police-shooting-reopened/

        1. I will add this — classic Dennis Leary on the right to eat greasy food:
          https://www.youtube.com/watch?v=gMI_26oljqs

        2. “In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of *certain* areas or zones of privacy, does exist under the Constitution.”

          “[These decisions] make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454, 92 S.Ct., at 1038-1039; id., at 460, 463465, 92 S.Ct. at 1042, 1043-1044 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra.”

          Quotes from Roe.

        3. “*Any* (not excessive) use of alcohol (with random testing) was a standard probation condition for UM undergrads released on bail.”

          You’re talking gibberish again.

          1. That’s an inordinately polite way of describing it.

        4. Dr. Ed:

          1. You could argue that — but you’d lose. Whatever you think of Roe‘s merits, or of the proper implications of its reasoning, what you describe does not accurately summarize how courts actually understand it.

          2A. First, can you point us to some sources on your statement about Michigan? Second, might the condition been applied just to under-21-year-olds, on the theory that they generally aren’t supposed to have alcohol (though I realize that there are some exceptions to that)? Again, it would be helpful to have sources that offer details.

        5. “2A: *Any* (not excessive) use of alcohol (with random testing) was a standard probation condition for UM undergrads released on bail. I understood it when it was an alcohol-related offense (e.g. OUI), but it appeared to be a universal condition for any alleged offense (e.g. union-related building takeover).”

          Unless they run their university differently from everybody else, most UM undergrads are below the age of legal possession of alcohol. Forbidding people who are not legally allowed to possess alcohol from consuming alcohol isn’t oppressive.

      3. There is a First Amendment right to attend protests; there is no constitutional right to consume alcohol.

        No enumerated right, perhaps. But the addition and repeal of an amendment certainly suggests such a solidly recognized right, as surely as if listed. It might be the king of unenumerated rights.

        1. ” the *manufacture, sale, or transportation* of intoxicating liquors within, the importation thereof into, or the *exportation* thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”

          1. That which is not prohibited is permitted.

        2. The 21st Amendment certainly didn’t make alcohol possession a constitutional right; it left the matter to the political process, especially at the state level. Mississippi, as I understand it, remained dry until 1966.

          1. Some localities remain dry in 2020. Monmouth, OR is one I know of, plus several Native American reservations.

  6. I think the functional word here is “protest.” What is taking place in Portland is lawless mob violence. There is no semblance of “protest” anywhere in that city.

    1. Jimmy the Dane: But the prohibition is on “attend[ing] any other protests, rallies, assemblies or public gatherings in the state of Oregon.” Are you saying that the defendants are free to return to the events outside the federal courthouse, because those events aren’t really “protests”? (Or are you saying that they are barred by the prohibition after all, perhaps because those events are still “rallies, assemblies or public gatherings” and not “protests”?)

      More broadly, if you’re arguing that they should just be excluded from places where there is lawless mob violence, why the prohibition on attending all Oregon “protests, rallies, assemblies or public gatherings”?

      1. Presume, for the sake of argument, that the charge had been “incitement to riot” and the concern was that these individuals would turn said “peaceable assemblies” into a “tumultuous assemblies.”

        Would this then not be a reasonable condition similar to the “no computer use” condition applied to those accused of hacking crimes?

        If the authorities are acting rationally (OK, but…), then they are attempting to arrest the leaders of the lawless mob violence and hence the fear would be that they’d go do more of it.

        1. “Would this then not be a reasonable condition similar to the “no computer use” condition applied to those accused of hacking crimes?”

          This would be a reasonable analogy if the Constitution expressly preserved a right to use a computer. As it does, for example, preserve rights to peaceably assemble and to petition for a redress of grievances.

          1. Doesn’t freedom of the press apply to computer use?

            1. “Doesn’t freedom of the press apply to computer use?”

              No, it applies to press use.

          2. Computers now have a critical role in expressing one’s viewpoints – indeed more important than the soapbox, handbill, or printing press.

            It therefore seems that restricting computer use as a pretrial release condition on someone charged with “hacking crimes” because that person might use a computer to illegally “hack” other computing resources is also a restriction on their First Amendment free speech rights. The restriction on computer use is to prevent the accused from having the opportunity to repeat the crime but is not intended to restrict their free speech rights – and in fact doesn’t prevent the accused of engaging in other forms of free speech (such as posting handbills, ranting on the street corner, typing a letter to the editor on a manual typewriter, or putting a yard sign up).

            This seems analogous to a release condition restricting participation in public gatherings when a person is accused of having incited a riot or refused to follow lawful police orders at such a gathering. This condition is in place because the accused might well incite a riot or refuse to follow lawful police orders when given another opportunity in a similar situation while pending trial. Of course, this person would still be free to post on internet forums, put up yard signs, email a letter to the editor, or publish a blog article. The intent of the restriction is to remove the opportunity of repeating the crime rather than restrict the free speech rights of the accused and does not foreclose most of the individual’s free speech rights.

  7. “But, rightly or wrongly, our current legal rule seems to be rather more complex and uncertain than that.”

    Isn’t that by design?

    With 50 states (and territories, DC, etc.), and 13 circuit courts, we’re always going to have differences.

    Which is GOOD!!!

    1. apedad: All the cases I was referring to were federal cases. And difference of opinion among federal courts is generally seen as something that ought to be remedied (by appellate decisions when it comes to disagreement within a circuit, and by the Supreme Court granting cert. when it comes to intercircuit splits). To be sure, having different opinions from various circuit courts is often seen as a valuable source of information to the Court — but precisely so the Court can decide whether to settle the matter (and which approach to use when settling it).

  8. Both sides love 50 states experimenting, to escape from Washington control. Until that frees states to do what the side doesn’t want. Then it’s Washington control all the way, baby!

  9. ” the law related to such conditions is surprisingly complex.”

    Respetfully, it shouldn’t be a surprise to find that the law related to such conditions is complex.

  10. Interesting that there’s no similar outcry about orders to surrender all firearms when someone is accused of a crime.

    1. If you wait until they’re convicted they’re less likely to surrender them. Criminals have to pay extra when they want to buy new ones.

  11. I think a lot of those precedents on pretrial restrictions were based on the presumption that the government would live up to it’s obligation to a speedy trial. Given how long the pretrial phase can last now, some of those precedents seem ripe for a rebalancing.

    And before anyone raises the issue, the fact that some of the pretrial delay comes from the defendant is irrelevant to the principle of rights balancing (though it may affect the magnitude).

    1. Defendants absolutely can demand a speedy trial (at least before Covid, which I’m sure complicates things), however, most criminal defense attorneys advise clients to waive that right because they want the time.

      1. They can demand it but my point is that what counts as a “speedy trial” now is vastly different than the norm that those precedents assumed.

        1. Bloate upheld the 70 day provisions of the speedy trial act against a prosecutor who wanted extra time for pretrial motion practice.

  12. Hypothetical: A person (Bob) runs someone through with a sword, killing them. Bob is awaiting trial. Bob claims he was not the swordsman. A condition of Bob’s bail is that he not bear any arms while awaiting trial. Is that prohibition, which bans guns in addition to swords, overbroad? Would it be acceptable if it banned swords but not guns? What if there’s no question whether Bob was the swordsman or not (perhaps he admits he was but claims it was in self defense or similar)?

    1. Following your hypothetical, you are giving us that Bob is guilty, that bit of omniscience might taint the results. In the real world, all we’d know is that there was evidence that pointed to Bob’s guilt (necessary to charge him with the crime) and that Bob said he didn’t do it.
      Knowing that he’s actually guilty makes it easy to say “Hell, yes, seize his weapons, he isn’t going to be allowed to keep them after he’s convicted, anyway.

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