Is Bribery conduct, not speech?

Tue Oct 5 10:51:45 PDT 2010

I think that United States v. Williams, 553 U.S. 285 (2008), is the go-to recent case on speech that is “integral to criminal conduct” or “intended to induce or commence illegal activities,” such as “[o]ffers to engage in illegal transactions.” It involved an offer to supply child porn, but most of Justice Scalia's discussion for the majority is more broadly general in its scope.

The Court's position essentially seems to be that speech in pursuit of a crime has "no value" and therefore receives no constitutional protection.

The facts of the Spence-Jones case sound eerily similar to those of the prosecution of former Governor Don Siegelman and Richard Scrushy (remanded to 11th Circuit by SCOTUS last June). The basis of the remand was the Skilling decision on "honest services," but the bribery part seems likely to remain intact.

Personally, I find the broad way that bribery statutes are being interpreted a little excessive--especially the notion that payments to public officials are "inherently a product of the official's position and power." Harvey A. Silverman, Three Felonies a Day 9 (2009); Cf. United States v. Evans, 504 U.S. 255 (1992).

takinglibertyseriously.net

John A. Humbach
Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
914-422-4239

Personal website: humbach.net
________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Gilbert, Lauren [lgilbert at stu.edu]
Sent: Tuesday, October 05, 2010 10:03 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Is Bribery conduct, not speech?

I received several helpful offline responses  to my query on the Spence-Jones case, and wanted to send out a follow-up email.  Several folks indicated that while bribery can be regulated because it's conduct, not speech, this did not look like bribery.  So focus on the conduct, and why it doesn't fit the elements of the definition.

A.  One commenter suggested two additional constitutional arguments:

1.) What you've described isn't bribery, and if the State decides to interpret the statute in some unexpected way, that interpretation would violate the fair warning requirement under the DP clause.
2.)  Consider bringing a selective prosecution claim, which is basically an Equal Protection argument that the statute has been enforced selectively against Spence-Jones on the basis of protected characteristic, whether it's her race or her exercise of her First Amendment rights.

B.  Another commenter said that you can bring an overbreadth challenge, but not on the basis of the First Amendment.  It's essentially the same argument above, that interpreting the statute in this way essentially turns it into an ex post facto law. So focus on the conduct.

I know that Eugene Volokh has written on the issue of crime-facilitating speech, and rejects the approach that it's conduct, not speech, but has recognized that there's certain crime-facilitating speech that can be regulated.  The question is how do you set the parameters.  And where does this case fit within that scheme, where the public official requests a charitable solicitation from a developer, makes no quid pro quo promises to act in a certain way, receives no direct pecuniary benefit, but where the developer gives the money to the charitable organization in the hopes that the public official will go his way?

Lauren

<http://ssrn.com/author=339800>

________________________________
From: Gilbert, Lauren
Sent: Mon 10/4/2010 10:55 AM
To: CONLAWPROF at lists.ucla.edu
Subject: First Amendment Challenge to Bribery Statute?

Michelle-Spence Jones, the African American Miami City Commissioner for District 5, which includes Miami’s poorest neighborhoods, including Little Haiti, Overtown, and Liberty City, is about to go to trial for bribery and grand theft.  There’s a fascinating political back story, which I will discuss in a moment, but what I’m interested in is your insight into what chance she has of prevailing on a constitutional challenge to the bribery statute under which she’s been charged.  Her lawyer, Peter Raben, recently filed a motion that the statute was unconstitutionally vague and overbroad, as applied, and requested jury instructions to narrowly construe the statute so as not to infringe on protected speech.

In short, Spence-Jones was indicted for bribery for a charitable solicitation she made to a developer who had a matter before her.  She was holding a fundraising event for the Friends of Martin Luther King Trust, a charity being started by a local pastor, and asked the developer, as well as many others, to contribute. The developer was seeking to extend Brickell Avenue, a posh area in southeast Miami, further north into an area where he had interests.  The developer contributed $25,000 to the MLK Trust, and the moneys were administered by the Dade Community Foundation.  Spence-Jones received no personal or pecuniary benefit.  There is also no evidence of any quid pro quo (that she would support his proposal if he gave the money), although there are news reports that she may have indicated sympathy for what he wanted to do.  Subsequently, the matter was taken off the City Commission’s calendar, so no decision was ever made.  This was back in 2006.  In March 2010, she was indicted for bribery.

Spence-Jones relies in part on a line of Supreme Court decisions dating back to Cantwell v. Connecticut finding that the charitable solicitation of funds involves interests protected by the First Amendment's guarantee of freedom of speech.  In Village of Schaumburg, 444 U.S. 620 (1988), the Court noted that charitable appeals for funds “involve a variety of speech interests—communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes—that are within the protection of the First Amendment.”

Also, in challenging the statute as overbroad as applied to her and perhaps as a form of content-based discrimination,  to what extent is it possible, in a criminal case, to weave in the political back story to show that the State Attorney, perhaps in coordination with Governor Crist, was using the bribery statute to silence her for her political speech?

This is the backdrop:  In November 2005, Spence-Jones was first elected as Commissioner for District 5.  She developed the reputation of fighting for her community, including negotiating concessions from developers, such as with regard to the new Miami Marlins Stadium downtown, but in the process, became unpopular with the powers that be, including other members of the Commission.

Shortly after her reelection to the City Commission on November 3, 2009, the State Attorney filed grand theft charges against her, claiming that she had misdirected county funds to a family business in 2005.  The alleged incident pre-dated her first election to the City Commission.  She was swiftly removed from office by Governor Crist on November 12, 2009 and special elections were held on January 12, 2010.  She easily won reelection , but was ousted again by Crist two days later on the eve of Martin Luther King’s birthday, a fact that did not go unnoticed by her supporters.  With Crist threatening to remove her from office again, she had challenged in early January the constitutionality of his anticipated actions in state court, claiming that he could not override the will of the people. Her ACLU lawyer also argued that she had only been charged on information, not indicted by a grand jury, an argument that the judge, in late February, appeared to find sympathetic. A few days later, in early March, however, a grand jury indicted her on both the grand theft charges and on the new bribery charges, post hoc justifying Crist removing her a second time and resulting in the dismissal of the ACLU challenge.

What do folks think?  The courts have not been that sympathetic to constitutional challenges to bribery or extortion statutes.  Some cases have said that bribery and extortion are not protected speech.  There have been cases to the contrary, however, such as where the court struck down an extortion statute as facially overbroad, and several cases indicating that an as applied challenge was possible.  Here the State has extended the reach of the law to charitable solicitations on behalf of a non-profit, where the defendant , a public official, received no private or pecuniary benefit.  What remedies does she have?

Here’s the Florida bribery statute:

"Bribery" means corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept for himself or herself or another, any pecuniary or other benefit not authorized by law with an intent or purpose to influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of a public servant, in violation of a public duty, or in performance of a public duty. § 835.015(1), Fla. Stat. (2009)

Any thoughts would be most welcome.

Lauren Gilbert, Esq.
Professor of Law
St. Thomas University School of Law
16401 NW 37th Ave.
Miami Gardens, FL  33054
Tel:  (305) 623-2386 (work)
You can access my papers on the Social Science Research Network (SSRN) at http://ssrn.com/author=339800

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