A few more thoughts, following up my earlier ones, on the arrest of Sam Bacile aka Nakoula Basseley Nakoula:
1. I do not know what spurred the arrest and questioning of Nakoula. But I do know, as a few news outlets have realized, that federal convicts on supervised release are supervised by probation officers, who are part of U.S. Probation, which is an arm of the United States Courts, not the United States Department of Justice:
Karen Redmond, a spokeswoman for the Administrative Office of the U.S. Courts, said Friday that Nakoula's federal probation was under review.
It is possible that someone in the Obama Administration made a call or leaned on someone in probation, either nationally or in the Central District of California? Yes, it's possible. Evidence, please. If it happened, I'd like to see a Congressional inquiry into it. But probation offices acting on their own upon a high-profile event involving a probationer is common. I suspect some offices have Google alerts set up; I've seen DUI arrests reported in the paper result in almost immediate action by federal probation officers.
2. I disagree completely with the sentiment expressed by Jack Marshall and elsewhere that the Probation Office should have refrained from action to avoid the appearance that the government is retaliating against speech. What separates us from the mob is the rule of law. We shouldn't ignore the rule of law by violating First Amendment principles in what Eugene Volokh correctly points out would be an utterly vain attempt to appease a mob. On the other hand, we shouldn't hinder the rule of law to avoid the appearance of appeasement, either. That's still letting the mob dictate our actions and our adherence to our own laws. "We would normally do X, but we musn't because it might enrage the mob" is just the flip side of "We would normally do X, but we musn't because it might embolden the mob." Both are a sucker's game. The mob's actions are going to be driven by its own culture and by the people manipulating the mob for their own political gain. Jack, and others, seem to be saying that the mob will misunderstand the orderly administration of the law in this instance: but is there really any chance that the mob will ever make an honest attempt to understand, or will care, or that the forces manipulating them will react honestly? Respect the rule of law and fuck 'em if they don't like it.
Also, it's not clear to me what people taking this point of view are suggesting. Should local probation officers make decisions about enforcement of terms of release based on foreign policy considerations? (Surely we'd be upset if the probation officer took foreign policy into account in the other direction, by saying "I have to make sure to start revocation proceedings because this defendant's words are offending mobs and causing violence.") If not, are people really suggesting that the administration should pick up the phone and intervene in the administration of probation in individual federal criminal cases to achieve foreign policy aims?
3. I see a lot of outrage about the optics of a crowd of armed law enforcement officers arresting Nakoula at his home late at night. The word "brownshirts" is being thrown around. If you live in this country and this is the first time you are being moved to say "brownshirts" over law enforcement behavior, you're blind or a partisan hack. In this country we tolerate a vast amount of rank law enforcement thuggery against citizens. We endure it, tolerate it, wink at it in the name of the War on Drugs, in the name of post-9/11 "security," in the name of thinking of our children, in the name of "law and order" and of police being the "thin blue line" between us and anarchy.
If the administration did, in fact, intervene in the supervision of an individual convict's supervised release, that should be the subject of widespread interest and condemnation. But where the hell was this outrage about law enforcement excess before?
4. This subject involves very important questions of free speech and foreign policy. Right now, thanks to the election season, it's being driven by sheer partisan rancor and opportunism by both sides. For the record, I'm voting against Obama and Romney.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016