Arrestee alleges government misconduct; federal magistrate orders arrestee to apologize and recant, as a condition of bail

Here are the magistrate judge’s hand-written bail conditions in U.S. v. Lipsen (W.D. Tex. May 16, 2014). (I’ve checked the federal courts’ electronic records system and confirmed the document posted at the linked site is authentic):

[The defendant] will request Tom Cochran Retract his blog on Facebook. Will provide a letter of apology to both local newspapers in Alpine, TX, advising DEA had a legitimate reason to execute a warrant at her business. Will advise newspaper A warrant was not executed at her business because she was Jewish, owned Arabian horses, is of Turkish decent [sic], or because she visited Chinese websites. Will advise media (KWest 9 News) that he [sic] sister, arrielle lipsen was not beaten by agents carrying/using a M16 rifle, and her sister instigated/assaulted agents.

(See also this NewsWest9.com story, which reports: “The sisters posted photos of injuries they claimed Arielle received from the agents…. Prosecutors said they’ll give the sisters bond if they take those pictures down.”)

This seems to me clearly unconstitutional: It’s an order compelling speech, on threat of imprisonment, which would itself normally be a First Amendment violation; but on top of that, it was issued without a trial, and thus without any final factual findings supporting its validity.

I’m aware that, once someone is convicted, courts have considerable latitude to impose speech restrictions as a condition of parole or probation, and might even be able to impose speech compulsions. But that is after someone’s guilt has been proven beyond a reasonable doubt in a criminal trial. The defendant here hasn’t been convicted of anything; she continues to be presumed innocent until proven guilty.

And courts have held (quite rightly, I think) that the government has quite limited powers to restrict defendants’ speech as a condition of bail. The proper purposes of bail conditions are to assure the defendant’s presence at trial, to prevent the defendant from attacking witnesses or victims, and to prevent the defendant from committing further while released; any speech restrictions must therefore be tied to those purposes. See, e.g., U.S. v. Spilotro (8th Cir. 1986); State v. Braun (Wis. Ct. App. 1989). Compare also Leary v. U.S. (5th Cir. 1970) (rejecting the government’s argument that Timothy Leary shouldn’t be released on bail because of the risk that he would advocate for illegal drug use; “if the appellant’s eligibility to be enlarged on bail under the Eighth Amendment may be lost because he exercises his first amendment right to freedom of speech and to freedom of the press, then Section 3146 imposes an unconstitutional condition”).

Here, the conditions seem to be tied simply to correcting what the magistrate judge thinks are factual errors. But a court can’t just compel someone who hasn’t been convicted of any crime to recant her accusations against government officials. If the statements are found to be false at a trial, that might lead to damages liability or criminal punishment — or potentially even an injunction. If Ms. Lipsen is found to be guilty of some other crime, it’s possible that some speech restrictions could be imposed on her as a condition of any probation or parole (though I’m not sure that these restrictions properly can be). But absent any such trial and verdict, the bail condition seems to be a clear violation of the First Amendment.

It’s possible that the ordered recantation was negotiated among prosecutors, defense counsel and the judge. But I don’t think this can make the condition constitutional: The legal system shouldn’t be able to pressure defendants to surrender their free speech rights this way, by threatening them with continued loss of liberty if they don’t include speech compulsions (or speech restrictions) as part of the negotiations. The “unconstitutional conditions” doctrine ought to be in full force here, it seems to me.

Thanks to Bob Woolley for the pointer, and to Wil Wheaton for initially publicizing the order.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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