The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In U.S. v. Garland, decided last week by Magistrate Judge Mark L. Carman (D. Wyo.), defendant—a commercial guide in Yellowstone—was prosecuted for, among other things, publishing a guidebook, podcast, and social media pages called "Explore Yellowstone Like a Local":
The Government alleges that Defendant aided and abetted a violation of a closure through his actions and comments made to Mr. Johnson [a visitor to Yellowstone] on or about July 30, 2020…. [T]o be guilty as an aider and abettor, it is necessary that Defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, and that he seek by his action to make it succeed." …
Mr. Johnson undoubtably committed crimes within YNP. There was evidence, and admissions, that he intentionally violated closures and cliff jumped while within YNP knowing such was illegal. The question, is what did Defendant do to willfully associate himself with the criminal venture and which of Defendant's actions sought to make the venture successful?
The only action Defendant arguably took was that of speaking and publishing. Defendant published a guidebook, used social media and created a podcast that all advocated for law violation. Defendant discusses cliff jumping in YNP in both his podcast and his guidebook.
Both sources tell people where to cliff jump, what dangers to look out for when doing so, and make it very clear the activity is illegal. Both sources also make it very clear that Defendant disagrees with the illegality and encourages people to do it anyway. Which, after listening to Defendant's podcast and buying his guidebook, is exactly what Mr. Johnson did.
While even speech advocating lawlessness has long enjoyed protections under the First Amendment, it is equally well established that speech which, in its effect, is tantamount to legitimately proscribable nonexpressive conduct may itself be legitimately proscribed, punished, or regulated incidentally to the constitutional enforcement of generally applicable statutes. Rice v. Paladin Enterprises, Inc. (4th Cir. 1997). The First Amendment does not necessarily pose a bar to liability for aiding and abetting a crime, even when such aiding and abetting takes the form of the spoken or written word. Further, there is no need for actual communication between an aider and abettor and the principal or for the aider and abettor to know by whom the crime is actually perpetrated.
In the Government's brief, it quotes much of the same law and argues Defendant's advocacy falls squarely within this "Speech-Act" Doctrine for aiding and abetting in criminal offenses. While persuasive, the Court disagrees in this instance because Defendant's advocacy lacks the required specificity. The abstract advocacy of lawlessness is protected speech under the First amendment. Brandenburg v. Ohio (1969) (emphasis added). The Speech-Act Doctrine is implicated when abstract advocacy of lawlessness exceeds its bounds and becomes an effort to detail the means of accomplishing a crime. The case law cited by the Government illustrates the differences between what Defendant has done in this matter and implicates the Speech-Act Doctrine.
In Rice v. Paladin Enterprises, Inc., the Fourth Circuit held that the publisher of a book named Hit Man: A Technical Manual for Independent Contractors, a guide focused on successfully soliciting, preparing for, and committing murder for hire, could not rely on the First Amendment as a bar to civil liability. With an incredible depth of analysis, the court found that the book simply exceeded abstract generality and gave specific advice on how to commit a criminal act. A similar conversation was had by the Ninth Circuit in U.S. v. Barnett (9th Cir. 1982), which involved the defendant providing and selling a recipe for PCP. The court held that encouraging and counseling another by providing specific information as to how to commit a complex crime does not alone constitute aiding and abetting. If, however, the person so assisted or incited, commits the crime he was encouraged to perpetrate, his counselor is guilty of aiding and abetting. The court quickly found that specific information was provided by the defendant, instead the focus of the court was whether a crime was eventually perpetrated.
Similar requirements of specificity can be found in the tax cases cited by the Government. In U.S. v. Kelley (4th Cir. 1985), the defendant was charged with conspiring to defraud the federal government and of aiding and assisting in the preparation of false W-4 forms. The defendant charged people membership fees for advice on how to avoid income tax withholdings and how to obtain refunds of previously withheld wages. He also provided forms and gave detailed instructions as to how those forms should be filled out. The Fourth Circuit found that no abstract discussion could be found, but rather specific advice was given to further an illegal undertaking.
With respect to Defendant, his actions are more akin to an abstract objection to YNP regulations. Defendant regularly informs listeners and readers of activities in the park that are illegal, gives a history of how that illegality came about and then makes it clear he oppose the rules and encourages listeners to violate them. From all the evidence before the Court, its clear Defendant believes "exploring Yellowstone like a local" is synonymous with exploring Yellowstone before extensive regulatory schemes and protections were implemented. The overall encouragement heard by Defendant fits more squarely in protected speech as abstract advocacy of lawlessness than it does detailed instructions on how to commit a crime.
Admittedly, the Government's position is not unreasonable and Defendant's conduct is not praise worthy. Defendant does provide some details, both in his podcast and guidebook, where cliffs can be found and that cliff jumping is illegal. He strongly advocates, multiple times, that visitors should cliff jump despite being a violation of park rules and encourages them to do so when Park Rangers are not in the area.
However, at the most basic level, all Defendant has done is provide information as to where cliffs are and why he believes people should ignore rules prohibiting jumping off those cliffs. Defendant has not provided a detailed account on how to commit a crime. The cliffs are well known within Yellowstone National Park and located at a swimming location where swimming is approved by the Park. He has not given a time of day when one would be most likely to avoid Park Rangers. He has not actively helped listeners or readers avoid detection by keeping lookout or by organizing coconspirators to do so. Without specificity raising Defendant's words beyond that of abstract advocacy of lawlessness, the Court cannot find him guilty of Count 10.
For a broader analysis of when providing information that helps people commit crimes becomes unprotected by the First Amendment, see my Crime-Facilitating Speech article.