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And U.S. v. Edwards, a nonprecedential decision handed down Thursday by the Sixth Circuit, read it precisely this way: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