USA v. Shkreli: A First Amendment Outrage

The First Amendment has for decades been interpreted to protect “inappropriate” speech, a fact well known to anyone who has sat for a bar examination in the past 40 years. So what was United States District Court Judge Kiyo Matsumoto thinking this week when he revoked bail for Martin Shkreli?

Mr. Shrekil is an easy man to despise. The young financier almost became a household name after he infamously jacked up the price of a prescription drug, Daraprim, an antiparasitic, from $13.5 per pill to $750 per pill in 2015. The justification? Good old fashion greed. Mr. Shkreli wanted to make the wolf of Wall Street look like a pussy cat.

This past summer, federal prosecutors sought, and obtained, a conviction of young Mr. Shrekli on securities fraud claims after a trial in Brooklyn. Sentence is to be imposed in early 2018. Until this week, Mr. Shkreli was free on bail pending sentencing. Judge Matsumoto revoked bail this week, sending Mr. Shrekli to jail.

What happened?

Apparently, Mr. Shrekli was improvident in his postings on Facebook, where, apparently, he has some 70,000 followers. “Grab a hair” from Hillary Clinton, he posted, offering $5,000 per strand.

This is no worse than much of the tripe posted on social media daily.

Humorless federal prosecutors filed a motion to revoke bond, arguing that this speech amounted to a threat, or, in the alternative, solicitation to commit a crime. It is neither, of course, and Judge Matsumoto should know this. But he doesn’t.

“The fact that he continues to remain unaware of the inappropriateness of his actions or words demonstrates to me he may well be creating an ongoing risk to the community,” the judge opined. This is gibberish might be understandable coming from a prosecutor, but it is unworthy of a federal judge.

Here’s the law:

“[T]he constitutional guarantees of free press and free speech do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio. Speech that “advocates [a] law violation [is protected by the first amendment] except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

            Speech, even menacing speech, is protected unless it directly tends to violence. Thus, “the mere abstract teaching of Communist theory, including the teaching of the moral propriety or even the moral necessity of a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” Noto v. United States (overturning a Smith Act prosecution against a Communist Party member). To be an imminent threat, “[t]here must be some substantial or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to otherwise ambiguous theoretical material ….”     

            Even expression of a desire to see another person dead, even to wish in some hypothetical future to be the executioner of a foe, is not enough to transform an abstract hope into an imminent threat. “Sometime I will see the time we can stand a person like this S.O.B. against the wall … and shoot him,” the defendant said in Noto. The Supreme Court was unmoved: “Surely the offhand remarks that certain individuals hostile to the Party would one day be shot cannot demonstrate more than the venomous or spiteful attitude of the Party toward its enemies, and might be expected from the Party if it should ever succeed to power.”  “It is present advocacy, and not an intent to advocate in the future or a conspiracy to advocate in the future once groundwork has been laid, which is an element of the crime….”

            “Political hyperbole” is distinguishable from a true or imminent threat. Thus, a speaker convicted of violating a federal law against threatening to take the life of the president had his conviction vacated when the Supreme Court concluded the following utterance was protected speech when uttered by a draft resister: “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.”  Watts v. United States.

            A menacing utterance spoke directly to another person is also protected. The Court considered both the context in which an utterance was made and the emotionally charged nature of the speech itself in concluding that the following was protected speech: An NAACP organizer told a group of African-Americans attending a rally in support of the boycott of white-owned business: “If we catch any of you going in any of those racist stores, we’re gonna break your damn neck.” NAACP v. Claiborne Hardware Co. “[M]ere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.” As Claiborne notes:

            In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, intending to create a fear of violence whether or not improper discipline was specifically intended…. The emotionally charged rhetoric of … [the language] did not transcend the bounds of protected speech…

            Finally, in Hess v. Indiana the Court overturned the conviction of a Vietnam antiwar protestor who uttered to a crowd of activists who had just been removed from a public street by local law enforcement agents: “[W]e’ll take the fucking street later (or again).” The Court determined this utterance was, “at worst, … nothing more than advocacy of illegal action at some indefinite future time.”

            Martin Shkreli is a blowhard – no more; no less. His speech on Facebook, though boorish, is protected. Judge Matsumoto erred, grievously, thus setting a dangerous and highly publicized precedent that suggests that the First Amendment protects only the police, measured and seemly utterance.

            Mr. Shkreli needs to appeal this ruling. It should not be permitted to stand. The ruling represents a clear and present danger to robust and passionate speech.


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