Soliciting Violence?

I’ve done several posts that dealt with using cyberspace to threaten someone (or something) with harm. This post is about a related crime: using cyberspace to solicit someone to commit a crime of violence against another person.

As Wikipedia explains, solicitation is “the name of a crime, an inchoate offense that consists of a person offering money or something else of value . . . to . . . induce another to commit a crime”.

As I’ve noted, inchoate crimes – like solicitation and attempt – are incomplete crimes; that is, neither is a free-standing crime. It is simply not possible to commit “attempt” or “solicitation.” Like conspiracy (the third inchoate offense), attempt and solicitation necessarily involve a “target crime” -- a substantive crime (like murder) that is the object of the attempt or conspiracy. So one can, for example, commit solicitation of the target crime or murder or attempt to commit the target crime of murder.

The rationale for criminalizing solicitation is essentially the same as the rationale for criminalizing conspiracy: Both involve concerted action by two or more people, all of whom are determined to see that one or more substantive crimes (e.g., murder, robbery, arson) are committed. The drafters of the Model Penal Code explained that a

solicitation is, if anything, more dangerous than a direct attempt, because it may give rise to the special hazard of cooperation among criminals . . .. Moreover, the solicitor, working his will through one or more agents, manifests an approach to crime more intelligent and masterful than the efforts of his hireling.

Commentary to § 5.02 of the Model Penal Code (Proposed Official Draft 1985).

This post is about the case in which the “government charged William White with violating 18 U.S. Code § 873 by soliciting another person to harm the foreperson of the federal jury that convicted white supremacist leader Matthew Hale.” U.S. v. White, 2009 WL 2244639 (U.S. District Court for the Northern District of Illinois 2009). As this opinion explains, “in 2003, a jury in the Northern District of Illinois convicted Hale of soliciting the murder of District Judge Joan Lefkow, who had presided over a civil case involving Hale's organization.” U.S. v. White, supra. Hale was sentenced to 480 months in prison for the crime. U.S. v. White, supra. As the opinion also explains, on October 21, 2008

the government indicted [White], alleging that on his website, Overthrow.com, he solicited or otherwise endeavored to persuade another person to harm `Juror A,’ the Hale jury foreperson. Specifically, the government alleged that on or about September 11, 2008, [White] displayed on the front page of his website a post entitled, `The Juror Who Convicted Matt Hale.’ The post read:

Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number].

(Indictment [R. 5] at 2 ¶ 3, alterations in original.). . . .

U.S. v.White, supra. The indictment further alleged that on September 12, 2008, [White] displayed on the front page of his website a post entitled: `[Juror A] Update-Since They Blocked the first photo’ and stating:

Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number]. Note that [University A] blocked much of [Juror A's] information after we linked to [his/her] photograph.

(Indictment at 3 ¶ 4, alteration in original.)

U.S. v. White, supra. White was indicted for violating 18 U.S. Code § 373, which provides as follows:

[w]hoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned. . . .

The indictment claimed White solicited one or more persons to violate 18 U.S. Code § 1503, which makes it a crime to injure a federal juror “on account of any verdict . . . assented to by him”. 18 U.S. Code § 1503(a).

White moved to dismiss the indictment under Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure. Rule 12(b)(3)(B) states that a judge can dismiss an indictment if it fails “to state an offense”, i.e., if it fails to charge the crime the defendant is alleged to have committed. The federal judge assigned the case found that in ruling on the motion, he was dealing with law, not facts; in other words, his task was to decide if the facts alleged in the indictment charged a violation of 18 U.S. Code § 373.

In deciding that issue, the judge noted the inherent tension between the § 373 crime and the First Amendment. He also noted that the Congressional committee which drafted the statute made it clear that the facts the government relied on would have to

obviate First Amendment issues. The government would first have to establish that the offender had the intent that another person commit a violent crime, and that the intent was manifested by circumstances strongly corroborative thereof. . . .The Committee listed a number of circumstances that would be highly probative of intent, including an offer of payment or other promise of benefit to the person solicited if he would commit the offense; a threat . . . if he would not commit the offense; [or] repeated solicitations or express protestations of seriousness in soliciting the commission of the offense. . . .

Second, the government would have to establish that the defendant commanded, entreated, induced or otherwise endeavored to persuade the other person to commit the crime of violence. Congress specifically rejected . . . `counsels,’ `encourages’ or `requests’ because they suggest equivocation too close to casual remarks. For example, an order to commit an offense made by a person to another with whom he stands in a relation of influence or authority would constitute a `command’; and threatening another if he will not commit an offense, or offering to pay him if he will, would constitute `inducement.’`“The phrase “otherwise endeavors to persuade” is designed to cover any situation where a person seriously seeks to persuade another person to engage in criminal conduct.’

U.S. v. White, supra (quoting Senate Report 97-307, at 180 (1981)).

After reviewing the indictment, the judge held that White’s “speech, as alleged in the indictment, is protected by the First Amendment and does not state a violation of § 373.” U.S. v. White, supra. He found that White’s posts concerning Juror A did not expressly

solicit or endeavor to persuade another person to harm Juror A. Rather, they disclose personal information about Juror A and comment on his/her sexual orientation and attitude toward race. Although the posts may be reasonably read as criticizing Juror A's vote to convict Hale, nowhere in them does defendant expressly advocate that Juror A be harmed.

U.S. v. White, supra. The judge explained that “[s]crutiny and criticism of those involved in the investigation and prosecution of crimes is protected by the First Amendment”, a protection that encompasses disclosing information “about the people involved”. U.S. v. White, supra.

The judge also found that the allegations in the indictment that allegedly corroborated White’s intention to solicit violence against Juror A were not enough to deprive his comments of First Amendment protection:

The first alleged corroborating circumstance is that when he posted information about Juror A, [White] was aware that white supremacists, the target audience of Overthrow.com, sometimes committed acts of violence against persons viewed as acting against the interests of the white race. However, the fact [he] knew white supremacists sometimes viewed his website and sometimes harmed people they perceived as enemies is insufficient to transform his lawful statements about Juror A into criminal advocacy, i.e., advocacy directed to inciting or producing imminent lawless action, as required by the First Amendment and § 373.

U.S. v. White, supra. The judge found that the other alleged corroborating circumstance was also not sufficient to transform White’s posts into solicitations of violence:

The second alleged corroborating circumstance is that on several occasions ranging in time from six months to three years before his posts about Juror A, [White] posted information, sometimes including home addresses, about other individuals criticized on his website and sometimes expressed a desire that these individuals be harmed. Several of these posts were accessible to persons visiting Overthrow.com at the time [he] posted about Juror A. The government's theory . . . appears to be that because [White] previously disclosed personal information about individuals and expressed a wish that they be harmed, his statements about Juror A could be found to be a violation of § 373. This theory is untenable. Defendant's other posts were created well before his Juror A posts, and none of them mention Juror A. . . . Further, the fact that in some of his pre-Juror A posts, [White] may have expressed a wish that the individuals named be harmed is hardly sufficient to transform his statements about Juror A into advocacy directed to inciting imminent lawless action and likely to cause such action as is required for the indictment to allege an offense under § 373 and the First Amendment.

U.S. v. White, supra.

The judge therefore dismissed the indictment against White. I assume the dismissal was without prejudice, which means the government can, if it is so inclined, try again with a new indictment. When an indictment is dismissed with prejudice, that ends the matter; the government can’t try again. Since the judge dismissed this indictment because the allegations it contained simply weren’t enough to support the charge that White violated § 373, I’m sure the government can, again if it is so inclined, try again. I suspect it won’t, because it sounds like there really isn’t any additional evidence that would satisfy the requirements of § 373 and the First Amendment.

This is another one of those cases – like some of the threat and stalking cases I’ve written about – in which we confront the fact that cyberspace can transform anyone into what we might call a lower-case paparazzo: someone who devotes his/her time and effort to documenting what used to be the private details of a non-celebrity’s life. I think the judge was correct in dismissing the indictment but, at the same time, I feel sorry for Juror A. I suspect none of us would be particularly happy if we acquired a lower-case paparazzo who publicized the trivial, mundane and yet “personal” details of our lives.