TFD

Harvey on Nightside with Dan Rea, Originally Broadcast May 11th, 2012

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 16 May 2012 19:56:50 GMT

Last week I stopped by the WBZ radio program Nightside with Dan Rea to talk about a seemingly unimportant piece of legislation, the Federal Restricted Buildings and Grounds Improvement Act, which had been passed with overwhelming bipartisan support last March. While the act's title implies that it is dedicated to improving the landscaping around federal buildings, Dan and I discuss how the new law has real freedom of speech implications: it represents unprecedented restrictions on protests near those under secret service protection. As we have learned over the years, laws are often not what they seem...

NACDL Podcast Audio Available

webmaster@harveysilverglate.com (Administrator Account) — Tue, 15 May 2012 21:35:22 GMT

This week I was a guest on NACDL's weekly podcast, "The Criminal Docket," where Mary Price and I discussed the overcriminalization crisis that has plagued America for the past three decades. It was a wide-ranging discussion of the causes, effects and possible solutions to the vast proliferation of vague statutes and overzealous prosecutions at the federal level. You can find the full audio of the podcast on iTunes, or by clicking here.

The Arizona Immigration Law is Beside the Point

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 07 May 2012 20:21:19 GMT

This summer, the Supreme Court is expected to rule in the case Arizona v. United States, and decide the constitutionality of Arizona’s controversial immigration law, SB 1070. On Forbes.com this week, my research assistant Daniel R. Schwartz and I argue that no matter the outcome of Arizona v. United States, a series of oppressive violations of immigrants' rights—and some truly shocking civil liberties violations—currently enshrined into law are unlikely to disappear.

You can find the article here.

What the Wall Street Journal Missed about False Statements Made to the FBI

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 07 May 2012 20:05:16 GMT

John Emshwiller and Gary Fields of The Wall Street Journal have been producing a series of front-page stories about overcriminalization in the United States, with a focus on vague and overbroad statutes, especially federal statutes. Their stories have highlighted an unfortunate basic fact about living in this country: the Department of Justice has an unconscionable number of laws at its disposal, and they know how to use and abuse them to target the innocent – many of the same themes I’ve covered in my “Injustice Department” series on forbes.com.

But in one of their recent articles about the DOJ’s practice of bringing “false statements” prosecutions, they failed to discuss the most important—and most pernicious—aspect of the feds’ use and abuse of the false statement statute. These false statements prosecutions must be understood in conjunction with the FBI’s deliberate policy not to record their interrogations and interviews of targets and of witnesses, and to instead rely on agents’ “Form 302” reports to supposedly document interviews. The result is a truly corrupting and terrifying combination, and helps to explain the problem Emshwiller and Fields highlight.

You can find a link to our article here: http://www.forbes.com/sites/harveysilverglate/2012/04/18/what-the-wall-street-journal-missed-about-false-statements-made-to-the-fbi/

Careful What You Click: The CFAA, The Ninth Circuit, And Your Right to Read This Blog

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 16 Apr 2012 19:00:21 GMT

My new research assistant Zachary Bloom and I recently co-authored a piece in Forbes.com in which we discuss the Ninth Circuit Court of Appeals' ruling in favor of a narrow interpretation of a Computer Fraud and Abuse Act. The CFAA is a vague, dangerous statute that is open to a wide number of readings. The Department of Justice's broad understanding of the law would criminalize much of the everday online activity of nearly every American. Fortunately, the Ninth Circuit did not see the merits of such a reading, and has limited its interpretation of the law to criminalize only the act of hacking into a computer system. This ruling is a positive step forward. But as we point out, the circuit courts are now in disagreement over the meaning of the CFAA, and the final outcome of the controversy will affect all of our lives.

The Arizona Legislature Tries to Bully the Constitution

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 06 Apr 2012 14:45:24 GMT

My research assistant Daniel Schwartz and I just wrote a piece for Forbes.com about the absurd new Arizona anti-bullying law passed by the state legislature and awaiting Governor Jan Brewer's signature. The bill is just the latest in a series of federal and state laws that seek to ban protected speech by renaming it as something else, then outlawing it. The Arizona bill is a particularly clumsy example of this phenomenon, with the legislature crudely attempting to expand its anti-harassment law to prohibit any form of electronic communication that might be considered "annoying" or "offensive" to the recipient.

As we point out in our article, this bill would essentially criminalize the conduct of anyone who wishes to participate in any public forum. Pundits, too, should beware: from Rush Limbaugh to Bill Maher,those from both sides of the political spectrum who seek to provoke and offend via electronic communications would be liable to face criminal charges under this bill.

Supreme Court: Strip Searches for All, Even Minor Offenders

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 04 Apr 2012 16:48:52 GMT

The Supreme Court's opinion in Florence v. Board of Chosen Freeholders of County of Burlington has created quite a stir this week. The opinion, authored personally by Justice Anthony Kennedy with concurrences from Chief Justice Roberts and Justice Alito, authorizes jails to conduct strip searches of all inmates, even those who are being booked for minor offenses such as traffic violations, regardless of whether or not prison authorities deem them suspicious.

Albert Florence, the plaintiff, filed his suit against the government after being arrested, subjected to a strip search, and put in prison for several days following a routine traffic stop. He was booked on charges of failure to pay a fine, a fine which he had actually paid years earlier. Yesterday I appeared for an interview on WGBH radio's Emily Rooney Show, in which I discussed the dangerous implications of both faulty police databases and the Court's granting such expansive authority to law enforcement and prison officials.

Should Attleboro Teens Have Been Arrested After Posting Threats On Facebook?

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 14 Mar 2012 18:21:11 GMT

Two days ago I was asked to appear on WBUR Radio's "Radio Boston" in order to discuss a recent case that has gotten quite a bit of press. The case involves two Attleboro, MA teenagers who were arrested after posting comments on Facebook about school shootings. Slate's Emily Bazelon and I discussed the charges before taking questions from callers.

You can find my interview after the jump.

Why Individuality Matters--John Stossel and David Boaz discuss Three Felonies a Day

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 24 Feb 2012 15:16:29 GMT

Last night on Stossel, John Stossel discussed individual liberty with the Cato Institute's David Boaz. When asked about the big issues facing America, Boaz mentions the wars in Iraq and Afghanistan, and then cites my book Three Felonies a Day, and discusses the real problem of ever proliferating vague federal statutes. Take a look at the video here.

Tonight, I will be appearing on Stossel to discuss overcriminalization in America. The show, entitled "Illegal Everything," will broadcast on Fox Business at 9PM.

Anatomy of a Bad Confession

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 13 Feb 2012 18:03:37 GMT

On Thursday, February 16th, David Boeri, a friend, colleague, and sometimes co-conspirator is going to be joining WCVB Television's "Chronicle" to discuss an absolutely outrageous case of injustice: the story of a 16 year old girl who was coerced by the Worcester police department into confessing to the murder of her infant.

The girl, Nga Truong, spent three years in jail before her release following a judge's order. After WBUR’s story aired in December, “Anatomy of A Bad Confession” prompted public outrage nationwide, calls for changes in the law and discipline of the police officers involved.

Now, Boeri continues to follow Truong’s story with a special half-hour report and an exclusive television interview with her for WCVB-TV. It airs on Chronicle this Thursday evening at 7:30. I truly believe that this is must-see TV.

For more, click here.

A profile in the Mass Law Journal

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 09 Feb 2012 22:51:56 GMT

This month's issue of the Massachusetts Lawyers Journal contains a long profile of me. The piece discusses some of my background, my criminal work, and my work on students' rights cases. If you're curious, you can find the piece by clicking here.

Kevin White, the Feds, and the press

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 07 Feb 2012 22:40:01 GMT

On January 27^th of this year, Kevin White, the man often credited with helping turn Boston into the modern city it is, died after a long illness. Since then, there have been a number of news reports and editorial commentaries discussing White’s sixteen year run as mayor, his subsequent career as a Boston University professor, and even the final years of his political life—capped as it was by seemingly endless federal corruption investigations that nailed a few underlings, but despite then-US Attorney (later governor) Bill Weld’s best efforts, never landed the “Great White.”

But missing from most of the coverage has been a description of how the press played handmaiden to Bill Weld’s prosecutorial apparatus and prevented Mayor White from pursuing a fifth term in office. In my post to ThePhoenix.com, I relate a number of stories of prosecutorial targeting and abuse that were largely ignored—and even aided—by the mainstream media at the time. It seems to me that these stories cry out to be told, uncomfortable as they may be for so many participants, myself included.

Boston College Researchers Drink with the IRA, and Academics Everywhere Get the Hangover

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 25 Jan 2012 21:26:52 GMT

Often the most precipitous modes of inquiry are the most vital. Certainly, that was how Anthony McIntyre and Ed Maloney felt when they founded the Belfast Project, a Boston College-based oral history project that would solicit candid narratives of “The Troubles” in Northern Ireland. The wound in Ireland is still raw, and it is therefore unsurprising that Belfast Project interviewees were promised that their stories would be kept secret until their deaths.

But last month, a federal judge in Massachusetts ordered Boston College to turn over many of the transcripts in order to aid with the police investigation into a forty year old unsolved murder in Ireland. In our piece this week on Forbes.com, Daniel Schwartz and I discuss the judge’s decision and argue that, while it pays lip service to the importance of academic freedom, it does not go nearly far enough to protect society’s interests and could end up setting a very unfortunate precedent for scholars engaged in sensitive research.

Take a look at an excerpt of our piece after the jump, or read it in its entirety by clicking here.

"Thou Shalt Not Watch Whales Eating"--The Economist

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 17 Jan 2012 14:44:25 GMT

A recent issue of the economist details one of the more absurd federal prosecutions I've come across in recent years. For the "crime" of attempting to film killer whales eating, a marine biologist could face up to 20 years in prison.

Have Gun? Don't Travel!

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 13 Jan 2012 19:01:26 GMT

In December of 2011, a series of arrests for gun possession charges in New York City raised a number of important—if perhaps unexpected—legal issues. A number of individuals with valid conceal/carry gun permits issued outside of the city had attempted to “check” their guns—whether at the Empire State Building lobby, the airport, or in one case the 9/11 memorial—and were arrested under the NYC gun law, which recognizes the validity of no outside permits, and carries with it a mandatory minimum sentence of three and a half years in state prison for possession of a loaded weapon. Many commentators have focused their ire on the specific nature of the New York City gun law itself, or have otherwise used the cases as a launching point for a discussion of the Second Amendment’s requirements.

In the piece we posted today on Forbes.com, Daniel Schwartz and I discuss, instead, the dangerously diminishing importance of “intent” in the criminal law—the so-called mens rea requirement that an individual be aware that he is committing a crime before he can be found guilty. Combined with the existence of mandatory minimum sentences, this creates a toxic soup that invites a seemingly radical remedy: “jury nullification,” or the controversial idea that juries have the power (even if not the clear right) to “nullify” unjust laws by voting for acquittal even when a person is, technically, in violation of the statute. Jury nullification, we argue, is essential in a free society that has gone off the rails in terms of prosecutorial abuse. While my book Three Felonies a Day: How the Feds Target the Innocent (updated paperback June 2011 from Encounter Books) details federal law injustices, Schwartz and I point out in this forbes.com piece that state legal systems are not entirely immune from similarly abusive tactics.

Tarek Mehanna Found Guilty

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 21 Dec 2011 18:50:51 GMT

I was saddened, though not terribly surprised, when I heard yesterday that after only ten hours of deliberations, a federal jury found Tarek Mehanna guilty of all seven counts for which he stood accused. Jurors felt the government had proven that Mehanna provided "material assistance to terrorists" for such actions as making translations of jihadi videos. Mehanna now awaits sentencing and may face up to life in prison for acts that, until now, seemed clearly protected under the First Amendment.

I was asked by PBS affiliate WGBH-TV, and NPR affiliate WBUR, to speak about the Mehanna case yesterday on their respective stations.

Click here for my interview on WBUR's Radio Boston (Dec. 20), or listen to the audio clip below.

Radio Boston

Click here for my interview on WBUR's Morning Edition (Dec. 21), or listen to the audio clip below.

Morning Edition

After the jump is video of my interview on WGBH-TV's Greater Boston (Dec. 20).

Blagojevich Sentenced: He Joins the Justice Department's Smoke and Mirrors Show

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 09 Dec 2011 20:04:47 GMT

Rod Blagojevich was sentenced on December 7^th (Pearl Harbor Day!) to 14 years in prison. I argue in my latest “Injustice Department” piece at Forbes.com that Blagojevich was a victim of an ever-expanding federal prosecutorial apparatus. He violated no state laws, and yet found himself under the thumb of a prosecutor citing vague federal statutes. The result was Blagojevich’s having been found culpable for behavior that was not criminal, and that he had no reason to think would be construed as such. In the run-up to his sentencing where the trial judge played his assigned part in a morality play enabling unjust federal prosecutorial power, and in a last desperate attempt to lessen his punishment, Rod Blagojevich admitted responsibility. But he admitted to having committed what I deem to be non-crimes. And if a new congressional bill—the “Clean Up Government Act”—gets enacted into law, we will see a great many more unsuspecting local politicians finding themselves in the crosshairs of an overzealous and unjust federal criminal justice system. Today it is the pols in the DOJ’s crosshairs; tomorrow it can readily be all of us (indeed, it pretty much is already).

Sometimes the Tobacco Companies are Right

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 25 Nov 2011 18:47:12 GMT

Sometimes we can even be thankful for tobacco companies. On November 7^th, Judge Richard Leon enjoined the FDA from enforcing new regulations which would force tobacco companies to emblazon their cigarette packages with graphic images depicting the worst ravages of diseases caused by smoking. While we are hardly fans of smoking tobacco or the companies which sell cigarettes, as my research assistant Daniel Schwartz and I write on Forbes.com this week, the tobacco companies were absolutely correct in their objections, and Judge Richard Leon’s decision represents an important reminder that the First Amendment guarantees us not only the right to speak, but also the right NOT to speak (and, in particular, the right not to parrot the government’s preferred point-of-view).

The Supreme Court: A Prosecutor's Best Friend

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 14 Nov 2011 21:08:44 GMT

On October 27th, the Innocence Project, in conjunction with the Veritas Initiative and Voices of Innocence, announced a “nationwide tour seeking policy reforms to prevent prosecutorial misconduct.” Headlining the tour will be John Thompson, the man who, despite being placed on death row due to corrupt and negligent actions on the part of the New Orleans District Attorney’s Office, was stripped of his 14 million dollar judgment against the DA by the Supreme Court’s ruling in Connick v. Thompson. In our latest post on Forbes.com, my research assistant Daniel Schwartz and I discuss the ruling, and critique the notion that the prosecutor’s office deserves immunity for its horrific neglect of basic constitutional rights. As we have written elsewhere, the explosion of federal statutes has made all people increasingly at risk of facing criminal and civil charges for a host of innocuous behaviors. Surely, so-called public servants should be held to at least as high a standard as their masters, rather than be given protections that would be unheard of for normal citizens.

What to do if the FBI wants to interview you

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 14 Nov 2011 20:16:21 GMT

One of the most shocking, and under-reported, Department of Justice practices is the FBI's express policy NOT to tape-record interrogations. Not recording interrogations allows the FBI to claim itself the sole arbiter of what is, and is not, true in a witness's testimony. Such a strategy gives clear, and unfair, advantage to the prosecution, and presents problems for witnesses, defendants, and defense lawyers alike.

But there is a simple, and effective, strategy which, if implemented, can get around the pesky problem: insist on recording the interview yourself. Recently, the Massachusetts ACLU asked me to discuss what to do if the FBI decides it needs your testimony. Here is how I responded:

I have been happy to see that the ACLU video has been catching on. In a recent article on alternet.org critiquing the "surveillance state", my interview was given as pragmatic advice to those who fear they might face an FBI interview. I sincerely hope my advice helps and that, eventually, the FBI decides to reform its harmful policy.

[End of post]

Obama Learns Newspeak: The Administration's Perversion of the Freedom of Information Act (FOIA)

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 09 Nov 2011 19:33:50 GMT

On October 30th, the Obama administration proposed an executive rule that will instruct government agencies to lie to the citizenry. The administration's proposal is a rule-change to the Freedom of Information Act: under the new policy, agencies would be instructed to tell citizens seeking prohibited documents not merely that the documents are not available, but that the documents do not exist at all. As my research assistant Daniel Schwartz and I show in our article on Forbes.com today, the implications of this seemingly insignificant bureaucratic decision are quite far-reaching, and make a veritable mockery of President Obama's supposed embrace of a new "era of openness" in government.

The right to videotape a cop

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 04 Nov 2011 16:25:01 GMT

Yesterday, I was quoted in a story in the Boston Herald about a new lawsuit brought by my colleague Harold Friedman against the Boston Police Department. Harold's client, Maury Palino, alleges that he was hit and pepper sprayed in retaliation for filming some policemen making a violent arrest. In the article, I argue that the right to film police officers is essential to promoting an open and more free society, a right, incidentally, recognized by the courts in Simon Glik's recent case.

You can find the article by clicking here.

[End of post]

Discussing Tarek Mehanna on WBUR

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 03 Nov 2011 18:58:41 GMT

On Tuesday, I was invited to discuss the Tarek Mehanna case on WBUR's radio program "Greater Boston." In the show, I debated Captain Glenn Sulmasy, a Law Professor at the US Coast Guard Academy in Connecticut.

As I have written here and elsewhere, my view is that the Mehanna case is, fundamentally, about free speech. Mehanna's translations of some Jihadi videos form the basis for his most serious charges of "Providing Material Support to Terrorists." I argue, in my debate with Capt. Sulmasy, that translations represent clearly protected speech; after all, I could make a translation of Mein Kampf, and it would not mean that I should be arrested for having urged the killing of Jews and Gypsies!

To hear a recording of the segment, click here, or listen to the embedded program below.

Radio Boston

[End of post]

Terrorizing Free Speech: the case of Tarek Mehanna

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 01 Nov 2011 14:57:30 GMT

Tarek Mehanna may have objectionable--even horrific--views, but that does not make him a terrorist or a criminal. Mehanna was arrested two years ago on charges of lying to federal investigators, and providing material support to terrorists. The FBI also implies that Mehanna had plans to carry out a shooting spree in the Sudbury mall, but was thwarted by his inability to obtain weapons (consider, for one moment, how easy it is to get a gun in the United States). The crux of the government's case centers on a series of videos for which Mehanna allegedly provided subtitles; the translations, the Feds say, represented material support for terrorists.

Last night I spoke with Emily Rooney on her WGBH show about the case, arguing that, in order to live in a free and open society, we must protect speech, even the speech of those whose beliefs we find abhorrent. The video is embedded after the jump.

Ukraine Is More Western Than You Think: The Trial of Yulia Tymoshenko

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 21 Oct 2011 19:36:01 GMT

On October 11^th, Yulia Tymoshenko, the former Prime Minister and would be President of Ukraine, was sentenced to 7 years in prison. Politicians, analysts, and reporters from Moscow, Russia, to Moscow, Missouri, have condemned her trial as an unjust farce. New York Times reporter Ellen Barry summed up many “western” views of the trial when she wrote that it would “lead Ukraine west, toward Europe, or into a tight symbiosis with the country’s Soviet-era masters in Moscow.” The consensus, of course, was that the guilty verdict has done the latter.

In our piece, Daniel R. Schwartz and I take a different view and argue that, while perhaps isolating the Ukraine politically, the trial itself demonstrates some striking similarities between our legal system and Ukraine’s. To convict Tymoshenko, politically-minded prosecutors cleverly utilized vague parts of the Ukrainian code of laws that were never designed to police her alleged behavior. As regular readers of my columns already know, the utilization of vague laws to convict the innocent is as American as apple pie (or, as it were, as Ukrainian as a nice bowl of Borsch).