Release Condition: “Defendant May Not Attend any Other Protests … or Public Gatherings in … Oregon” Some people arrested in Portland for misdemeanor failure to obey a lawful order have had these conditions imposed as a condition of being released before trial. But the law related to such conditions is surprisingly complex. EUGENE VOLOKH |THE VOLOKH CONSPIRACY | 7.29.2020 8:24 PM What seem to be the latest developments, from Fox23 (Rebecca Boone & Jack Bleiberg): U.S. court officials in Oregon are reviewing bans on future protesting that were placed on some people arrested during protests in Portland after some raised concerns that the prohibitions violated the First Amendment. “We’re reviewing every case again right now and looking at the wording of some of the conditions,” Brian Crist, chief pretrial services officer for the U.S. District Court in Portland, said Wednesday. “A lot of this I think will be resolved.” Crist said he couldn’t comment on individual cases, but he noted the court looks at each defendant individually and doesn’t have “blanket conditions” that are placed on everyone…. The protest bans, first reported by ProPublica, were imposed in at least a dozen cases — most of them involving misdemeanor charges of failing to obey a lawful order. Defendants had to agree to the prohibitions in order to be released from jail while they await trial. Some of the protest bans were hand-written in the court documents, others were typed out: “Defendant may not attend any other protests, rallies, assemblies or public gatherings in the state of Oregon,” many of the release documents read. I did a bit of research, 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,
What seem to be the latest developments, from Fox23 (Rebecca Boone & Jack Bleiberg): U.S. court officials in Oregon are reviewing bans on future protesting that were placed on some people arrested during protests in Portland after some raised concerns that the prohibitions violated the First Amendment. “We’re reviewing every case again right now and looking … Continue reading Release Condition: “Defendant May Not Attend any Other Protests … or Public Gatherings in … Oregon” Some people arrested in Portland for misdemeanor failure to obey a lawful order have had these conditions imposed as a condition of being released before trial. But the law related to such conditions is surprisingly complex. EUGENE VOLOKH |THE VOLOKH CONSPIRACY | 7.29.2020 8:24 PM What seem to be the latest developments, from Fox23 (Rebecca Boone & Jack Bleiberg): U.S. court officials in Oregon are reviewing bans on future protesting that were placed on some people arrested during protests in Portland after some raised concerns that the prohibitions violated the First Amendment. “We’re reviewing every case again right now and looking at the wording of some of the conditions,” Brian Crist, chief pretrial services officer for the U.S. District Court in Portland, said Wednesday. “A lot of this I think will be resolved.” Crist said he couldn’t comment on individual cases, but he noted the court looks at each defendant individually and doesn’t have “blanket conditions” that are placed on everyone…. The protest bans, first reported by ProPublica, were imposed in at least a dozen cases — most of them involving misdemeanor charges of failing to obey a lawful order. Defendants had to agree to the prohibitions in order to be released from jail while they await trial. Some of the protest bans were hand-written in the court documents, others were typed out: “Defendant may not attend any other protests, rallies, assemblies or public gatherings in the state of Oregon,” many of the release documents read. I did a bit of research, 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, Continue Reading