By Syreeta LaShawn McNeal, CPA, JD
People fear the worst possible scenario that Senator Obama will be assassinated as he seeks to be President of the United States of America. If the increased secret service presence for Senator Obama, noose sightings since his presidential announcement in May 2007, and recent comments by former Arkansas Governor and former Republican presidential nominee, Mike Huckabee, talking about pointing a gun at Senator Obama while he is on the floor at a televised NRA meeting does not hasten those fears, then those who truly support Senator Obama are not understanding that this is the reality for any black man deciding to attain the highest office in the land over their white counterparts.
I love the fact that my dear brother, Dr. Boyce Watkins, is trying to find out whether Fox Contributor Liz Trotta’s personal comments about assassinating Senator Obama and Osama Bin Laden qualify as a particular crime with his recent entry on May 26, 2008. Dr. Watkins even highlighted a federal statute, 18 U.S.C. § 373(a), to see if there is any validity to federal prosecutors bringing a case against Trotta.
Well, the issue is whether Trotta’s statements on the Fox News broadcast is a form of free speech protected under the First Amendment of the U. S. Constitution or is it a solicitation of a crime, punishable in the federal courts?
To tackle this issue, this article will give a background of First Amendment protections of the U.S. Constitution on free speech. Next, this article will analyze the intent of 18 U.S.C. § 373 as identified in the United States Court of Appeals for the Ninth Circuit's ruling in U. S. v. Devorkin in 1998. Finally, this article will analyze whether Trotta’s statements fall into free speech or solicitation of crime, punishable under the law.
I love the fact that my dear brother, Dr. Boyce Watkins, is trying to find out whether Fox Contributor Liz Trotta’s personal comments about assassinating Senator Obama and Osama Bin Laden qualify as a particular crime with his recent entry on May 26, 2008. Dr. Watkins even highlighted a federal statute, 18 U.S.C. § 373(a), to see if there is any validity to federal prosecutors bringing a case against Trotta.
Well, the issue is whether Trotta’s statements on the Fox News broadcast is a form of free speech protected under the First Amendment of the U. S. Constitution or is it a solicitation of a crime, punishable in the federal courts?
To tackle this issue, this article will give a background of First Amendment protections of the U.S. Constitution on free speech. Next, this article will analyze the intent of 18 U.S.C. § 373 as identified in the United States Court of Appeals for the Ninth Circuit's ruling in U. S. v. Devorkin in 1998. Finally, this article will analyze whether Trotta’s statements fall into free speech or solicitation of crime, punishable under the law.
Free Speech Under the First Amendment of the U. S. Constitution
Under the First Amendment of the U. S. Constitution, citizens are allowed to speak freely in praise or criticism of their government and its leaders without fear of prosecution. The founding fathers ensured this guarantee in the original Bills of Rights to the U. S. Constitution because many of the American revolutionaries were persecuted for criticizing King George of Great Britain.
Free speech does have limitations. Federal and state governments are allowed to regulate this protected right as long as it is narrowly tailored to protecting the health, safety, and welfare of its citizens. For example, you can’t yell “fire” in a crowded theater for fear that this action will cause great danger for the health and safety of its theater occupants. If a person does yell fire in a crowded theater, the act is punishable by fine or jail under either state or federal law.
Free speech does have limitations. Federal and state governments are allowed to regulate this protected right as long as it is narrowly tailored to protecting the health, safety, and welfare of its citizens. For example, you can’t yell “fire” in a crowded theater for fear that this action will cause great danger for the health and safety of its theater occupants. If a person does yell fire in a crowded theater, the act is punishable by fine or jail under either state or federal law.
Legislative Intent of 18 U.S.C. § 373
18 U.S.C. § 373 states as follows:
(a) Whoever, 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 highly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.
(b) It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited. A renunciation is not "voluntary and complete" if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective. If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a preponderance of the evidence.
(c) It is not a defense to a prosecution under this section that the person solicited could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution.
To non-lawyers viewing this statute, many people think there is a possibility that Trotta could be prosecuted under 18 U.S.C. § 373. However, examining the United States Court of Appeals for the Ninth Circuit ruling in U. S. v. Devorkin in 1998 would show that this is less likely to occur.[1]
The facts of the case are Devorkin, a Montana resident, contacted a confidential informant and asked him to kill Karen Ramsey, Devorkin's former spouse, who lived in Seattle, Washington.[2] In return, Devorkin offered to kill the informant's former son-in-law.[3] The informant contacted law enforcement officials and, after several monitored conversations with Devorkin, he introduced Devorkin to Special Agent Gunderson of the Bureau of Alcohol, Tobacco, and Firearms, who posed as a "hit man."[4] At a motel in Montana, Devorkin gave Gunderson $500, one-half of the $1,000 fee to commit the murder, and photographs of Ramsey.[5] Devorkin was arrested at a second meeting with Gunderson at which Gunderson falsely told Devorkin that he had murdered Ramsey.[6]
In Devorkin, the legislative history sheds light on the intent of 18 U.S.C. § 373. The Court asserted that the Senate Judiciary Committee's report clearly indicates that the provision was intended to reach persons who solicited crimes, but were unsuccessful, and that other provisions were in place to deal with the situation when the crime solicited was completed:
The Committee believes that a person who makes a serious effort to induce another person to commit a crime of violence is a clearly dangerous person and that his act deserves criminal sanctions whether or not the crime of violence is actually committed. The principal purpose of the new section is to allow law enforcement officials to intervene at an early stage where there has been a clear demonstration of an individual's criminal intent and danger to society. Of course, if the person solicited actually carries out the crime, the solicitor is punishable as an aider and abettor. S. Rep. No. 98-225, at 308 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3487.[7]
Application of 18 U.S.C. § 373 to Liz Trotta’s Statements on Fox News
In contrast to Devorkin, Trotta stated on a Fox News broadcast that she wishes both Osama and Obama were assassinated in a joking manner. Under 18 U.S.C. § 373, this would not rise to the level of Trotta’s statement being a clear demonstration of an individual’s criminal intent and danger to society. She said it while laughing. Also, she did not publicly tell people that she would pay money to anyone who assassinated Obama and then actually pay money to the person as done in Devorkin.
Trotta’s comments are more comparable to Fox News Contributor Bill O’Reilly’s comments about creating a lynching party on Michelle Obama if she did not have pride in her country until now was true. Also, Trotta’s comments are comparable to ESPN Golf Channel anchor Kelly Tilghman’s comments about lynching Tiger Woods in a back alley. O’Reilly and Tilghman were not brought up on federal or state criminal charges for soliciting perceived violence against people or government entities. Their statements are protected under the First Amendment protections of free speech. Like American revolutionaries, these people are free to express their opinions about people as long as they do not clearly demonstrate an individual’s criminal intent to harm a person or danger to society.
So, Dr. Watkins, you probably will not be successful in getting a federal prosecutor to bring up charges against Trotta under 18 U.S.C. § 373. More appropriate action you can take is to protest the network and have Trotta publicly apologize or be suspended for her comments by the network. O’Reilly and Tilghman experienced this later action. But, criminal prosecution for these statements is highly unlikely.
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1 comment:
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