Ninth Circuit's Censorship Efforts Only Paid Off Temporarily

Blast Zone No. 3248 - 0 Comments
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Category: Judges - Appellate
Current Courthouse Address:
700 SW 6th Ave
Portland, Oregon 97204
Ninth Circuit Decision to Censor Website:

The Ninth Circuit's ability to censor websites just because the owner sent someone a threatening email years ago is no more. Unfortunately that is because the owner of the sites is off supervision and not because he won his challenges to the constitutionality of the ban and then whether or not a sufficient nexus existed between the lawful businesses and the offense of conviction. The owner argued that just because the person that he had sent the email to would not have provoked him with her own unlawful conduct had he not lawfully refused her requests to remove information. That followed an earlier appeal in which he argued that a ban on computer use for the obvious purpose of keeping him from speaking online was unconstitutional.

In the first case, the Ninth Circuit ruled that a computer ban is not a ban if it permits access with the approval of a probation officer. That came with it the assumption that the probation officer would approve lawful monitored access to computers. In the case in question that was not the case. The probation officer refused to approve any computer use at all. On top of that the Ninth Circuit overruled its own opinions in 2016 with United States v. LaCoste (9th Cir. 2016 case no. No. 15-30001) in which the court held that they have only supported computer bans in cases involving sex crimes against minors and that a proviso allowing access pursuant to approval by probation was no longer sufficient to make such a condition anything but a total ban. Based on that the district court had to allow the website owner access to computers but then banned him from his website or similar websites specifically.

The underlying offense took place when someone wanted a page removed from a website and the owner would not remove it. That person started harassing the owner and members of his family hoping to get to the owner that way. The harassment included threats and a fake 911 call claiming that a hostage situation was taking place (a practice known as "swatting"). When he finally found proof of who was responsible he fought back by letting the person know that he could prove that she was the one responsible and threatened to kill her if she screwed with him further. What got him into trouble was that after she screwed with him again, he told her that he would go to her house "armed to put an end to [her] once and for all." He was held on $1,000,000 bail in state court until the feds picked up the case, held him without bail, and the state charges were dropped.

When pleading guilty the government made it look as if the deranged stalker that targeted the website owner were in fact the real victim. The government claimed that even though the owner of site did not break the law until sending the email that he still inflicted emotional distress and was therefore to blame for the situation. The judge obviously cared more about doing what was popular than the constitution. A good judge would have scolded the prosecutor for not charging her and categorized her claims of distress due to the web posting as irrelevant. Instead the judge did all he could to prevent anyone else from provoking the owner by keeping him from being able to speak online. When imposing the website ban he implied that it would be necessary to protect any member of the public that might harass the owner in person and not just online. As a result the government and the court basically green lighted the owner by saying that they will not pursue charges against people that threaten or harass him, but they will throw the book at him if he fights back. This went beyond keeping him from sending threatening emails. It said that if someone were to harass him in person they would need protection. When that is the case the appropriate thing to say is "do not harass that guy in person" because he has the same right to defend himself as anyone else.

The Ninth Circuit supported that logic by holding that not only was the email enough of a nexus but that "The public is entitled to be protected against crimes flowing from the same character trait demonstrated by the crime." So, if someone is convicted of a crime and any employment they seek is deemed related in any way to the same character trait demonstrated by the crime an employment restriction is justified. That means that in the Ninth Circuit all a prosecutor has to do to get an employment restriction against a convict is play a quick game of Six Degrees of a Character Trait.

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