U.S. Marshal Service Harassment: The Wide Parameters of Protected Speech

On January 15, 2010 two investigators from the U.S. Marshals Service interviewed me at my residence in connection with a law enforcement matter. The investigators said they were concerned that this blog, My Daily Struggles, contained "angry" or "very angry" statements and they stated their specific concerns about my references to a federal official within their protective jurisdiction. I had quoted the official as stating, "This case has been screaming for attention for years." The investigators were alarmed by my quote of the word "screaming."  The blog post in question concerned a matter of public interest, namely, corruption by a public official.  Courts are especially loathe to sanction speech relating to matters of public interest as opposed to matters of purely personal interest.  See, e.g., Sousa v. Roque, no. 07-1892-CV (2d Cir. August 21, 2009). The investigators were concerned that I had disclosed the house of worship attended by the federal official.They were concerned about a book I had authored and mailed to the official's spouse, a book that had been praised by a university professor and which I transmitted to the official's spouse with a cordial note. The investigators were also concerned that I had added several nondefamatory facts about the official to a biographical Wikipedia article. I recently learned that the investigators were especially concerned about a letter I sent to the official in August 2000, ten years before the interview in January 2010!

Threats against a public official are a serious matter, and I in no way mean to imply that the Justice Department should not undertake to protect public officials and investigate credible threats. My statements and behaviors, however, were not a credible threat.

The wide parameters of speech protected by the First Amendment are highlighted by the following brief review of federal law concerning political speech about the President of the United States.

The statute governing threats against the President, 18 U.S.C. § 871(a), provides for criminal sanctions against anyone who threatens the President, but the statute must still be read in the context of free political debate. See Watts v. United States, 394 U.S. 705 (1969). In Watts, a young man at a political rally was protesting the draft. He had received a draft card and was supposed to report to the Army. He stated, "I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." Id. at 706.

The Supreme Court held that his statement was not sufficient to constitute a "threat" against the President within the meaning of the statute, even though the statement, taken literally, referred to shooting the President. The Court found that his statement was merely political hyperbole. Even though the statement referenced shooting the President, it was, in context, merely a crude expression of political opposition to the President rather than a genuine threat.

The Court stated that the statute, 18 U.S.C. § 871(a), is constitutional in general, as the nation has a strong interest in protecting the President, but the Court also stated, "what is a threat must be distinguished from what is constitutionally protected speech." Watts, 394 U.S. at 707.

The Court held that in order to prosecute someone under the statute, the government must prove that there is a "true" threat as opposed to a mere statement of political hyperbole, which is protected. The Court stated, "we must interpret the language Congress chose 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on the government and public officials.' " Watts, 394 U.S. at 708 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).

None of my statements or behaviors relative to the federal official that prompted an inquiry by the U.S. Department of Justice in January 2010 even remotely  approached the category of "vehement, caustic, or unpleasant sharp attacks" on a public official -- verbal attacks which are, in fact, protected by the First Amendment.

Have I overreacted to the Justice Department investigation?  I don't think so.  Concerned citizens spare no efforts in defending the right to speak freely about matters of public interest, and rightly so.