Is Federal Criminal Solicitation Unconstitutionally Overbroad? – American Constitution Society

Report on the Intersection of Free Speech Jurisprudence and Sustainable Development Goal 16

1.0 Introduction: A Case Study in Justice and Fundamental Freedoms

A recent acquittal in the Eastern District of Virginia serves as a critical examination of the balance between national security legislation and the protection of fundamental freedoms, a core tenet of Sustainable Development Goal 16 (Peace, Justice and Strong Institutions). The case, involving online posts construed as soliciting violence against a political figure, directly tested the legal frameworks designed to uphold SDG Target 16.10, which aims to ensure public access to information and protect fundamental freedoms.

2.0 Case Analysis: Upholding the Rule of Law

The defendant was charged under federal criminal law 18 U.S.C. § 373 for soliciting a crime of violence based on a series of posts on microblogging platforms. The jury’s verdict of “not guilty” underscores the judiciary’s role in safeguarding principles essential to SDG 16.

• Core Issue: The central question was whether the mere encouragement of a criminal act, without inducement, constitutes criminal solicitation, and how this aligns with constitutional protections for speech.
• Judicial Outcome: The acquittal affirms the high legal standard required to prosecute speech, thereby reinforcing SDG Target 16.3, which promotes the rule of law and ensures equal access to justice for all.

3.0 Legal Frameworks and Alignment with SDG 16

The case highlighted a significant tension between statutory interpretations of criminal solicitation and established free speech doctrines, impacting the development of effective, accountable, and transparent institutions as outlined in SDG Target 16.6.

3.1 Competing Interpretations of “Encouragement”

1. Broad Interpretation (Prosecution): Argued that speech satisfying the elements of criminal solicitation is categorically excluded from First Amendment protection, similar to obscenity or “true threats.” This position risks undermining the participatory and representative decision-making (SDG Target 16.7) that relies on robust, and often vehement, political discourse.
2. Narrow Interpretation (Defense & Judiciary): The court instructed the jury to distinguish between “mere or abstract advocacy of violence” (protected speech) and speech “directed and likely to produce imminent lawlessness” (unprotected speech), as established in Brandenburg v. Ohio. This distinction is vital for achieving SDG Target 16.10.

4.0 Implications for SDG Target 16.10: Protecting Fundamental Freedoms

The prosecution’s argument, if successful, would have significantly constrained protected speech, creating a chilling effect on political opposition and public discourse. This outcome would be contrary to the objectives of SDG 16, which relies on open societies where fundamental freedoms are secure.

• Risk of Overreach: A broad definition of solicitation could criminalize a significant amount of political speech that, while advocating for unlawful acts, falls short of inciting imminent action.
• Upholding Brandenburg: The court’s jury instruction maintained the landmark Brandenburg standard, ensuring that “mere advocacy” remains protected. This is fundamental to preserving the civic space necessary for monitoring government accountability and promoting strong institutions (SDG 16.6).

5.0 Conclusion: A Path Forward for Justice and Strong Institutions

The verdict represents a crucial affirmation of the principles underpinning SDG 16. To ensure continued progress, legal interpretations must consistently reconcile security concerns with the imperative to protect fundamental freedoms. A recommended approach involves a more precise definition of criminal solicitation.

5.1 Recommendations for Aligning Law with SDG Principles

• Refine Statutory Interpretation: Federal solicitation statutes, such as 18 U.S.C. § 373, should be construed to require more than “mere advocacy.”
• Require Proof of Inducement: Consistent with legislative history, a solicitation charge should necessitate proof of a serious offer, such as a hiring arrangement or partnership proposal, to commit a violent crime.
• Strengthen Protections: This refined approach would categorically exclude criminal solicitation from First Amendment protection without infringing upon the core political speech that SDG 16 seeks to protect, thereby strengthening the rule of law (SDG 16.3) and ensuring the stability of just and inclusive institutions.

1. Which SDGs are addressed or connected to the issues highlighted in the article?

SDG 16: Peace, Justice and Strong Institutions

• The article is fundamentally about the functioning of the justice system and the strength of legal institutions in a democratic society. It explores the complexities of applying criminal law while upholding fundamental constitutional rights. The entire narrative revolves around a federal court case, the roles of prosecutors, public defenders, judges, and juries, and the interpretation of laws and legal precedents. This directly engages with the core principles of SDG 16, which aims to promote just, peaceful, and inclusive societies by building effective, accountable, and inclusive institutions at all levels.

2. What specific targets under those SDGs can be identified based on the article’s content?

Target 16.1: Significantly reduce all forms of violence and related death rates everywhere

• The article addresses this target by discussing the legal framework designed to prevent violence. The case centers on the federal statute 18 U.S.C. § 373, which criminalizes the solicitation of a “crime of violence,” specifically the assassination of a political figure. The prosecution’s effort to convict the defendant represents an institutional attempt to curb speech that could lead to violence, thereby contributing to the reduction of violence.

Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all

• This target is central to the article. The text provides a detailed account of the rule of law in action, showing how courts interpret and apply statutes (18 U.S.C. § 373) in light of constitutional principles (the First Amendment) and Supreme Court precedents (Brandenburg v. Ohio). The mention that the author is the “Federal Public Defender” who represented the defendant highlights the principle of equal access to justice, as it ensures legal representation for individuals who may not be able to afford it.

Target 16.10: Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements

• The core conflict discussed in the article is the balance between public safety and the protection of a fundamental freedom: the freedom of speech. The legal analysis of what constitutes protected “mere advocacy” versus unprotected incitement to “imminent lawless action” is a direct examination of how this fundamental freedom is safeguarded. The acquittal of the defendant, based on the court’s instruction about First Amendment protections, demonstrates the active protection of this freedom by the judicial system.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

Indicator for Target 16.1: Existence and application of laws criminalizing incitement to violence

• The article explicitly discusses the federal law 18 U.S.C. § 373, which prohibits soliciting a crime of violence. The prosecution of an individual under this statute serves as a direct indicator of the state’s effort to use its legal system to prevent violence.

Indicator for Target 16.3: Availability of public legal defense and adherence to legal precedent

• The author’s role as a “Federal Public Defender” is an implied indicator of a system providing access to justice for all. Furthermore, the detailed discussion of how Judge Anthony Trenga instructed the jury based on the Supreme Court’s decision in Brandenburg v. Ohio indicates that the judicial process is adhering to the rule of law and established legal precedents. The jury’s “not guilty” verdict is an outcome indicator of the justice system functioning as designed.

Indicator for Target 16.10: Judicial decisions that protect freedom of expression

• The outcome of the case, where the jury found the defendant “not guilty,” serves as a powerful indicator. This verdict, following a specific judicial instruction that “the First Amendment protects speech that merely, without more, encourages or advocates that others should engage in violence… at some indefinite point in the future,” demonstrates the active protection of the fundamental freedom of speech, even when the content is controversial or offensive.

4. Create a table with three columns titled ‘SDGs, Targets and Indicators” to present the findings from analyzing the article.

Source: acslaw.org