Pretrial Release Condition: Can’t Speak About “the [Capitol Riot] or the Matters Related to the United States Government”

Jeremy Chisenhall (Lexington Herald Leader) reports:

[Damon Michael Beckley, who was subjected to these conditions,] has been charged with unlawful entry of a restricted building and disorderly conduct on Capitol grounds, according to the FBI. He was filmed at the Capitol on Jan. 6, saying, “we aren’t putting up with this tyrannical rule. If we’ve got to come back here and start a revolution and take all of these traitors down, which is what should be done, then we will.” …

Other Kentucky residents charged in the riot face atypical constraints. Gracyn Courtright, a University of Kentucky student, can only travel to D.C. and West Virginia for court appearances and Kentucky for college classes, according to court records.

Robert L. Bauer was ordered not to attend or participate in any public rallies or protests as a condition of his release, according to court records. He was also barred from entering any state or federal Capitol grounds.

I did a bit of research back when there were stories about broad pretrial release restrictions on people arrested in the Oregon protests, and the matter is a bit complicated.

[1.] Generally speaking, the government has a good deal of latitude in imposing conditions on convicted defendants who are released on probation and parole, including conditions that restrict defendants’ speech or association. One way of thinking about it is that the people have been convicted and could be in prison, where their First Amendment rights can be sharply restricted.

[2.] Courts have at times also imposed similar conditions on people who have been indicted (based on a finding of probable cause that they committed a crime) and are awaiting trial. One can imagine a rule saying that you can’t be deprived of liberty at all until you’ve been found guilty beyond a reasonable doubt, whether by being locked up or by being subjected to pretrial release conditions; but that’s not what our legal system has adopted.

Thus, for instance, in U.S. v. Collins (N.D. Cal. 2012), several defendants were indicted for interfering with PayPal computers (via a distributed-denial-of-service attack), as retaliation for PayPal’s blocking of service to Wikileaks. The court upheld a pretrial release condition barring the defendants from using Internet Relay Chat (IRC), because the defendants had used IRC to coordinate their attacks:

While any limitation on free speech must be imposed cautiously, and each defendant retains the presumption of innocence during the pretrial period, the IRC restriction in this case furthers a compelling government interest in protecting the public from further crimes coordinated through a means specifically addressed by the grand jury in the language of the indictment. The condition operates in a content-neutral fashion. The condition does not restrict political or any other discourse by any other means, even by use of other internet services such as email, blogging services such as Tumblr, chat other than IRC, or social networks such as Facebook or Google+. All of this suggests to the court that a restriction on IRC use, while permitting substantial internet use for purposes that include political discourse, strikes a reasonable balance between the legitimate and yet competing interests of the parties….

The court also notes that the condition does not impose any burden greater than associational and other First Amendment-impacted restrictions routinely imposed by courts as a condition of pretrial release. See, e.g., United States v. Spilotro (8th Cir. 1986).

But the court set aside the Twitter use condition:

The indictment makes no mention of Twitter whatsoever…. In the absence of any indictment charge, any evidence, or even any specific proffer of such illicit activity [using] Twitter, the court is not persuaded that the restriction advances any legitimate interest in protecting the public’s safety or prevent any defendant from fleeing. Under these circumstances, any illicit use of Twitter by any defendant may be adequately addressed by the monitoring approved elsewhere in this order.

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