The Volokh Conspiracy

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Free Speech

Pretrial Release Condition: Can't Speak About "the [Capitol] Protest or the Matters Related to the United States Government"

And can't "participate in any protests, rallies or demonstrations."


Jeremy Chisenhall (Lexington Herald Leader) reports:

[Damon Michael Beckley, who was subjected to these conditions,] has been charged with unlawful entry of a restricted building and disorderly conduct on Capitol grounds, according to the FBI. He was filmed at the Capitol on Jan. 6, saying, "we aren't putting up with this tyrannical rule. If we've got to come back here and start a revolution and take all of these traitors down, which is what should be done, then we will." …

Other Kentucky residents charged in the riot face atypical constraints. Gracyn Courtright, a University of Kentucky student, can only travel to D.C. and West Virginia for court appearances and Kentucky for college classes, according to court records.

Robert L. Bauer was ordered not to attend or participate in any public rallies or protests as a condition of his release, according to court records. He was also barred from entering any state or federal Capitol grounds.

I did a bit of research back when there were stories about broad pretrial release restrictions on people arrested in the Oregon protests, 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 general 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; and, under Scott, there would need to be an individualized determination that the person is quite likely to commit such crimes (e.g., would be likely to engage in trespass, vandalism or violence at a future protest)—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 (and likely not as to the Beckley conditions, see below). At the same time, it's also a pretty vaguely defined bar, so one can't speak with clear confidence in many cases; 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.

[5.] And my specific sense of the Beckley case: The restriction on all speech about the riot, or criticisms of the federal government (even if read as limited to criticisms related to the substance of the riot) strikes me as pretty clearly unconstitutional, even given the extra authority the government has as to pretrial release conditions. This is especially so because it does not "operate[] in a content-neutral fashion" and does "restrict political … discourse" of a certain sort through any "means," and not just one narrow technology.

The protest attendance restrictions also seem to be unconstitutional, unless there's specific evidence that Beckley is likely to engage in trespass, vandalism, or violence at future protests. (Note that the Oregon no-protest restrictions were quickly dropped.)

The ban on appearance on state and federal property (even if read to exclude local government property and streets and highways) doesn't necessarily implicate the First Amendment, but in many applications it might, for instance if he wants to go to a public lecture at a local university (assuming such things are allowed given the epidemic). And in any event it too seems much too broad, though perhaps the coronavirus lockdown might make its practical effect more limited.