As I mentioned in my previous post about the Kelly Thomas killing, the functions and execution of government powers and the legal system are by default biased heavily in favor of the powers that be and such powers have great potential to be, and many times have proven to be, corrupt as hell. That said, before we all collectively tell Barrett Brown to shut up regardless of whether such a pleading would tip a hat to his right to free speech, I think it is fair to acknowledge that Brown’s paranoid ramblings and associated “threats” may have been his only recourse to defend himself from the fears he professed were true: Agent Robert Smith is corrupt; the FBI is corrupt; the Zetas are out to get him; the FBI is in on it with the Zetas; and if armed men charged in on his home, Brown would feel justified in assuming it was a Zeta assassination attempt coordinated in conjunction with the FBI.
…THAT said, and in addition to Brown’s own confession of heroin addiction and issues with Suboxone withdrawal at and around the time of the “threats” and other tweets listed in the indictment, I think we can at least give the government credit for allowing a mental competence hearing for Brown before the trial against him proceeds. This should especially be appreciated by Constitution enthusiasts as the evidence of actus reus of Brown’s alleged crimes primarily revolves around a combination of arguably- and absolutely- protected speech.
As for that “conspiracy” charge? Well, look at the indictment: he was soliciting others to find “Restricted” information on Agent Robert Smith, which has been dubbed a “conspiracy” due to another’s attempt to find such “RESTRICTED” information with what is only described as an “Internet search”. Because you know, when I want to get down and dirty on a Federal Agent’s RESTRICED information, forget unauthorized access to a security clearance-protected Federal Database, I’m all about the old-fashioned Google stalk. For this charge, maybe we should give the FBI a mental competency hearing while we’re at it….
If you haven’t taken a peek at the Federal indictment against Barrett Lancaster Brown, I implore you to do so. Then, I invite you on a First Amendment adventure where I explain to you why we should all be offended and worried by the United States’ Prosecutor’s attack on our Right to Speech. The tale I shall tell will not necessarily defend Brown completely or successfully, but it will point out the fallacy of this indictment against him, which is supposed to contain “essential facts of the case”, but really just reveals the Government’s fear of our right to voice dissent and grievance against them.
Count 1: Knowingly and Willfully transmitting in interstate commerce communications containing threats to injure the person of another. 18 USC Section 875(c).
While Brown does make vague and conditional threats against others such as @AsherahResearch and @_Dantalion, the indictment count doesn’t seem to care much about them, citing only “threatening to shoot and injure agents of the FBI” – specifically Robert Smith.
So let’s take a look at the first few useless items in this indictment:
Item 5) f. is a conditional threat made on Brown’s twitter against twitter user @_Dantalion in which Brown warns he will shoot if @_Dantalion comes near Brown’s home in Texas. Brown adds that such an act of self-defense of self and property is legal. Which it is. When I went to check @_Dantalion’s profile on October 5, 2012, on of the first tweets I came across was @_Dantalion explaining to another twitter user, “I am not an FBI agent”. So Brown made a conditional threat, the condition being an act that would trigger a legal right to defend oneself, against someone who is not an FBI agent. This cited evidence in the indictment does not lend to Count 1. At all.
Something I will say now that will apply across all of my arguments is that my belief, which may or may not be held up in a criminal law context in court, is that a threat that is not imminent does not constitute Assault. I base this on my understanding of the civil Tort offense of Assault which defines the intent behind Assault as an intention to cause imminent harm or apprehension of imminent harm. The above conditional threat Brown made to @_Dantalion does not detail imminence, and, as you will see as this story unravels, NONE of the threats made by Brown were imminent. Moving on…
Item 8) c. Is a vague, conditional threat toward renowned Anonymous foe, @AsherahResearch. Talk about my momma again and “see what happens”. So… what’s gonna happen? And what is it about this tweet that implies or infers the requisite intent for a threat against an FBI agent?
More importantly, why doesn’t Count 1 even mention that people who were not FBI agents were also “threatened”? Poor Dantalion and Asherah.
Where Brown is in trouble on Count 1, albeit with room for a defense, are items 12) c. and d.
The Greatest Incriminating Hits from the infamous “last video” by a disheveled, suboxone-withdrawn Brown include “Robert Smith’s life is over”, “I’m gonna look into his kids”, and “I will shoot and kill [the FBI] if they come.”
This is where we should all yell a hearty “Shut up, Barrett Brown” in the general direction of Texas. Don’t threaten a federal law enforcement agent, you guys. It’s enumerated in a Federal statute and is one of the few types of threats out there that does not need to be imminent to be illegal. It is contingent upon whether the threat is made in regards to LE carrying out their official duties.
But there is still a defense. Maybe. The “threats” regarding Robert Smith and his kids aren’t threats of injury. Brown even states “By ruin his life, I don’t mean kill him”. As for shooting and killing the FBI? I point to the “knowingly” sub-element of intent for this particular statute. The threat is conditional on whether or not the FBI comes. Brown never indicates that he knows the FBI is coming. He says in the item 12. video that the FBI has held onto his seized computers for months and has yet to allege Brown of a crime based on the evidence from a previous raid. In fact, as the worst evidence against Brown is this singular video, the FBI probably didn’t even know whether or not they were going to raid Brown at the time that this conditional threat was made. Admittedly, this is a tight defense to make, but I will come back to it for Count 3.
Further defense? Mental and emotional instability: persisting paranoia issues plus suboxone withdrawal. Although a finding of Brown’s allegation of FBI corruption would probably not happen, there is a question of self-defense. And if there was no real reason for self-defense, see: delusions of grandeur, delusions of persecutions, paranoid psychosis. In other words, possible insanity defense (and the thresholds for the insanity defense may be lowered when there was no action taken beyond speech).
Count 2: knowingly and willfully combine, conspire, confederate, and agree with other persons known and unknown to Grand Jury … to make restricted personal information about an FBI agent and immediately family publicly available with intent to threaten and intimidate the agent and to incite commission of violence against the agent. 18 USC Section 371 and 18 USC Section 119.
…How much more element-loaded can a charge get?
The “with intent” and the all-elements-must-be-fulfilled-indicative “and” ‘s of the latter part of this Statute combo are hard for the Government to corroborate with the facts of this indictment. They’re doing pretty good up to “incite commission of violence against” Robert Smith. We’ve got solicitation which, upon the cited agreement Brown made with another to gather Smith’s personal information, merges into conspiracy. We have immediate family members. We have intent to threaten and intimidate. But incite violence? That’s where the prosecution stretches it. Look through the indictment closely, and there is never a threat or suggestion of committing violence against Smith. Only the hypothetical FBI raiders, generally.
But I think this Count specifically is why the indictment tries to pancake all of Brown’s tweets together. Actually, the majority of this indictment is an attempt to build a criminal, violence-inciting profile of Brown out of several non-criminal tweets. This compilation is why I say we should be afraid for our Right to Speech.
It is clear in several tweets, that Brown is soliciting and possibly conspiring to gather restricted information on Robert Smith for the purpose of publicly releasing it. None of these tweets suggest violence toward Smith.
Non-exhaustively: 6) a. 8) a., 11, and 13. Although it legally doesn’t matter for conspiracy, it should be noted that no evidence is listed in the indictment that Brown succeeded in obtaining the sought restricted information on Smith.
One memorable case from my Criminal Law class (at the moment I cannot find the case, but will likely come back to revise this paragraph when I find it) is a case where a drunk driver was acquitted on appeal because evidence levied against him included, basically, pro-drinking propaganda bumper stickers the driver had. These bumper stickers were used as evidence toward the defendant’s intent. It simply didn’t work. Pro-drinking speech didn’t help the prosecutors in adding to the defendant’s intent for criminal drunken behavior. Similarly to this decision, I argue anti-government speech not directly associated with the accused behavior for the alleged crime of conspiracy shouldn’t lend to intent for the conspiracy.
In fact, this is nearly exactly what was held in California State Appellate courts in People v. Huss regarding the instruction of including picketing sign slogans as evidence for conspiracy to incite a riot as being an invalid, unconstitutional instruction. 241. Cal.App.2d 361. Although a California Appellate court decision doesn’t serve as precedent over the Federal District Court that Brown will face trial in, Huss borrows its reasoning from Federal Supreme Court case Terminiello v. City of Chicago. 337 U.S. 1. (How do you like them apples?)
…which should also hold for the next count…
Count 3: knowingly and willfully threaten to assault a federal law enforcement officer with intent to impede, intimidate, and interfere with such federal law enforcement while engaged in the performance of official duties and with the intent to retaliate against such federal law enforcement officers on account of performance of official duties. 18 USC Sections 115 (a)(1)(B) and (b)(4).
…and some of my favorite highlights of the Free Speech-protected tweets that shouldn’t lend to the intent of Counts 2 and 3 are…
2) c. “Do you know how to shoot? You have five years to learn. Maybe less.” Links to a short video of Brown doing some shotgun practice in an open field.
My assumption for this tweet is that in saying “You have five years to learn” how to shoot is a reference to a conspiracy such as FEMA camps where conspiracy theorists believe the government will raid us all and send us to “FEMA concentration camps”. Or something like that. But isn’t self-defense against a corrupt government the heart and soul of the Second Amendment? Otherwise, there is no specific (or even general) mentioned target for the suggested self-defense nor is there an imminence of the assumed threat posed by Brown’s pro-arms propaganda.
3) a. “Kids! Overthrow your government lol” Link? Get this- the link is to a Blondie music video, “Rapture”. A political satire on how the government and media has zombified us all. OH NOES! DISSENT AND GRIEVANCE!
The tweet itself reeks of satire. See: “Kids!” and “lol”. Before heading to the music video link, I thought maybe the link would lead me to something that would really rile me up with a fervent violent fire if I were susceptible to do so. Maybe a conspiracy theory that pulled at revolutionary heart strings? Maybe excerpts from the Anarchists’ Cookbook?
No. It’s a Blondie music video. Not exactly speaking to an incitement of violence nor an intent to retaliate against a raid.
Similar anti-government, pro-self-defense-against-a-corrupt-government comments include “Don’t Wait. Retaliate.” and 10) b.’s vague threat by Brown that he will use “other means at [his] disposal” to ‘wipe out the government’… the “wiping out” he promises to do includes more specific, non-violent threats of using courts, media, and his investigative journalism at ProjectPM.
And 2) e. “Have a plan to kill every government you meet.” in which there is no specific or general threat to any human being, but an abstract entity and with such an abstract entity being the object of the threat, “kill” could be interpreted as a non-violent version of the verb such as “stop” or “get rid of”.
The not-physical, non-injurious, cyber threats….
5) a. “…the net will give us revenge.”
5) c. “Nothing restrains me from my real work. #ProjectPM”
5) e. “Help #ProjectPM plan, execute further attacks … #PantherModerns”
For the record, the Panther Moderns are a FICTIONAL hacking group from the work “Neuromancer” who simulated a CYBER terrorist attack on a media conglomerate called “Sense/Net”
The ReTweeted threat that is actually a threat to himself:
7) “A dead man can’t leak stuff… Illegally shoot the son of a bitch.” Brown is comparing himself to the object and victim of this retweeted threat, Julian Assange. The presumed subject of the tweet instructed to “illegally shoot the son of a bitch” would be a LE officer who should act as a due process-depriving judge jury and executioner for Assange (comparatively, Brown).
Well, at least they’re giving Brown due process so far…
Not even threats and I don’t even know why they were included in the indictment:
2) a. “Don’t be a pussy. Call up every fascist and tell them you’re watching.” Links to a weird music remix featuring harmless sound clips that include Brown.
5) b.: “Fuck you.” -directed at the feds for apparently depriving Brown of his opiates, somehow.
5) d. “Journalists allow the guilty to escape. #ProjectPM ensures the guilty will be known to their children as they are, forever.
10) a. “This is part two of why I’m so fucking angry.” BB mad.
Here, I’ll repeat my defense for Brown’s intent. Knowledge is requisite for Count 3. Brown did not know that the FBI would raid him and his threat was contingent on a raid that he wasn’t even certain would occur based on a lack of the FBI’s ability to charge him with anything from the first raid of Brown.
And once again: insanity or diminished mental capacity due to Suboxone withdrawal. The worst and most incriminating of Brown’s threats from item 12 were coupled with Brown’s admission that he was a Heroin addict and hadn’t taken his Suboxone. In addition, Brown thinks he’s entitled to get his stuff back from the first raid months ago where the FBI took and held his computers. (Non-exhaustively: Items 8) b and 2, 10) b.) He also thinks he deserves an apology [10) b.]. Grandiose and possibly delusional. I almost wonder why the FBI didn’t go for a discrediting involuntary psych ward hold.
Or you know, just give him his stuff back, which as we are learning from recent developments in the PayPal 14 case, he may have very well had the right to after 60 days of the FBI holding it. (But I think feeling entitled to an apology is still a bit delusional.)
With and indictment riddled with constitutionally-protected speech, my fear is that the US Prosecutors and FBI wanted to put an attack on anti-government dissent and critique at the forefront of this issue. They wanted to scare us all into shutting up and watching what we say when it comes to speculating government conspiracies and suggesting we consider the possibility of an increasingly corrupt government and promote the intention behind the Second Amendment which is to protect ourselves from a worst-case scenario resulting from such corruption.
Shut up, Anonymous. Shut up, Occupy. Shut up, investigative journalists. Shut up, militias. Shut up, delusional and justified paranoia. Shut up, Tea Party. Shut up, dissidents.
Watch your televisions. Click on those targeted advertisements tailored by our tracking of your Google searches. Did somebody tell you that non-violent protesters were beat and shot at by Riot Cops? Don’t worry. We did it for National Security reasons. And don’t mind the surveillance cameras in every retail store and on every street corner. They’re just livestreaming and storing your every move for TrapWire.
Shut up, Barrett Brown.