Nakoula Basseley Nakoula Can Be Whomever You Want Him To Be.

Nakoula Basseley Nakoula is in federal prison. He's scheduled to remain there until September. He's held under the name "Nakoula Basseley Nakoula," not as "Sam Bacile" (the name he used make the anti-Islamic film "the Innocence of Muslims,") nor under the name "Mark Bassely Youssef" (which he now claims is his current correct name, notwithstanding that he pleaded guilty to a federal crime under the Nakoula name).

Why is he in prison? It depends on who's talking.

To hear some people talk, he's in prison because he made an anti-Islamic movie, because the Obama Administration is eager to cover up the root causes of the Benghazi catastrophe, and because the Obama Administration wants to appease censorious Islamists. Some people merely imply this with headlines: "The guy who made “Innocence of Muslims” is still in jail, and we still don’t know who attacked Benghazi" Some people, like National Review's Rich Lowry, come right out and say it, asserting that Nakoula would not have been arrested and charged with a supervised release revocation but for his speech:

He is not going to win any good citizenship awards and violated the terms of his probation by using an alias (something Nakoula admits).

A violation of probation, though, usually produces a court summons and doesn’t typically lead to more jail time unless it involves an offense that would be worth prosecuting in its own right under federal standards. Not for Nakoula.

This wasn’t a case of nailing Al Capone on tax evasion. As Nina Shea of the Hudson Institute points out, Al Capone’s underlying offense was racketeering and gangland killings. Nakoula Basseley Nakoula’s underlying offense wasn’t an underlying offense. He exercised his First Amendment rights.

Some call him a political prisoner.

These people all have something in common. They've never prosecuted a supervised release revocation in federal court. They've never defended someone accused of violating supervised release in federal court. They've never worked as a federal probation officer or filed a petition to revoke a sueprvisee's release. They've never worked as a federal judge and approved or denied such a petition, or presided over such a hearing. They've never seen a supervised release revocation hearing. Moreover, I'd wager a substantial amount of money that before they opined about the proceedings against Nakoula they didn't talk to anyone who had ever done any of these things, or anyone reasonably well informed about how they are done.

I've observed, and participated in, federal supervised release revocation proceedings since 1995. In writing about Nakoula I've drawn not only on that experience but on the actual documents from his case and on the law. My premise has been this: anyone on supervised release for a federal fraud conviction and owing more than $700,000 in restitution would face supervised release revocation if the Probation Office discovered that they were using aliases, engaging in unreported financial transactions, and using computers in those transactions, all in violation of their terms of release. Most federal judges would issue arrest warrants, not summonses, and most federal judges would order jail time to such a person if they found he had obtained and used a false driver's license and concealed transactions from the Probation Officer. Rich Lowry's claim that "[a] violation of probation, though, usually produces a court summons and doesn’t typically lead to more jail time unless it involves an offense that would be worth prosecuting in its own right under federal standards" is quite frankly pulled straight out of his ass. Supervisees are routinely arrested rather than summoned, particularly when there are indications they might be a flight risk — like using a false identity. Supervisees are routinely returned to prison for offenses that would never be prosecuted federally as separate crimes.

Is Nakoula in federal prison because he made the "Innocence of Muslims" video? Superficially, perhaps, in the sense that his behavior may have escaped detection if he hadn't become famous. It's even possible that someone in the Obama Administration tipped off — or pressured — the Probation Office about his conduct. (If that's what happened, there ought to be a Congressional investigation.) But Nakoula's conduct is the sort that would absolutely be pursued if detected by his Probation Office and would routinely result in a revocation of supervised release and a return to federal prison. People saying otherwise don't know what they are talking about or don't care, or both.

I support a vigorous Congressional inquiry into the attack at Benghazi. The most charitable interpretations of the inquiry to date raise grave concerns about the honesty and decency of Obama Administration officials. I support asking hard questions about whether anyone in the administration contacted the U.S. Probation Office in Los Angeles about Nakoula. But this inquiry doesn't require, and shouldn't encourage, lying about the law. We should absolutely fight, to our last breath, pressure to yield to unprincipled "hate speech" and "anti-blasphemy" norms of other countries. But the cause of freedom of expression is not advanced by cynical and dishonest partisan bullshit.

Edited to add:


Mr. Baldwin, you're completely awesome. But my days of taking you serious politically are certainly coming to a middle.

Nakoula Basselley Nakoula Sentenced For Supervised Release Violations

In a triumph of stupid hope over bitter experience, I am going to write again about Nakoula Basseley Nakoula aka Mark Bassely Youssef aka "Sam Bacile," one of the people behind the inflammatory "Innocence of Muslims" video.

Yesterday Nakoula admitted guilt on four of the eight supervised release allegations against him. He did so under the name Mark Bassely Youssef. In his underlying federal fraud conviction, Mr. Nakoula had repeatedly represented that his true name was Nakoula Bassely Youssef. Depending on how United States District Judge Christine Snyder handled his change of plea hearing, he might have said it under oath. (A federal change of plea colloquy is under oath. Some judges will ask you what your true name is before you're under oath, some after.) At any rate, though he answered to one name in his fraud case, Mr. Nakoula now now asserts that he changed his name to Mark Bassely Youssef before that case, and is now proceeding as Mr. Yousseff. For continuity I will continue to refer to him as Mr. Nakoula.

Though public court records reflect this result, as far as I can tell the Probation Office's petition specifying the eight supervised release violation charges has not been made public. Annoyingly vague media reports generally indicated that Nakoula admitted to lying to his probation officer, getting a driver's license in a fake name, and using aliases, and that the government agreed not to pursue violations related to alleged lies to law enforcement during his interview.

Judge Snyder sentenced Nakoula to one year in prison and four years follow-up supervised release. That's more than the home detention he asked for and less than the two years the government asked for. The sentence appears to be in the general range recommended in the non-binding United States Sentencing Guidelines for violations of this type, and is consistent with the sorts of sentences I've seen for such conduct by someone with such a record over the last 17 years. The sentence of exactly one year is notable: in federal confinement you don't get credit for good behavior (up to 15%) unless the sentence is at least a year and a day, which is why you often see sentences of a year and a day rather than a year. By sentencing Nakoula to a year Judge Snyder suggested she wanted him to do the full year. (Where he does it is in the discretion of the Bureau of Prisons.)

Nakoula's attorney claimed afterwards that the government proceeded against his client because of his exercise of his First Amendment rights. He didn't file any motion on that basis, and his client entered a guilty plea despite the claim. That's undoubtedly because under the relevant standard for selective prosecution, he'd have to prove not only that the government prosecuted him because of his protected speech, but also that similarly situated people who didn't speak like that were not prosecuted. Despite the sentiments of many internet lawyers who have never seen a supervised release revocation proceeding, all of whom are completely certain that convicted fraudsters never get revoked for using aliases and getting drivers licenses in bogus names, Nakoula would never be able to make that showing, because it's freaking ridiculous. That's why his attorney didn't try.

A few things about the plea and sentencing hearing are notable. First, I doubt anyone will take this at face value:

"I'm not going to say much about the movie because he's not here because of the content of the movie," Assistant U.S. Atty. Robert Dugdale said.

"Agreed," U.S. District Court Judge Christina Snyder said abruptly, interrupting the prosecutor.

Fair disclosure: I know and respect Bob Dugdale, though I haven't seem him in years. The fact that the Chief of the Criminal Division handled a supervised release revocation hearing — normally something a rookie would handle — will be taken by some as evidence of the sinister hand of the administration. However, I've seen top office officials handle high-profile hearings for as long as I've been in this business. Cynics would say it's for the publicity; politics wonks would say it's to control the message tightly in a closely-watched case.


However, Assistant U.S. Attorney Robert Dugdale argued Youssef's lies about his identity have caused harm to others, including the film's cast and crew. Deadly violence related to the film broke out Sept. 11 and spread to many parts of the Middle East.

"They had no idea he was a recently released felon," Dugdale said Wednesday. "Had they known that, they might have had second thoughts" about being part of the film.

He said they have had death threats and feel their careers have been ruined.

I'd like to see a transcript, instead of USA Today's summary, to see exactly what Dugdale said. It's true that there was violence related to the film, in the sense that the film was used as an excuse for violence and used by terrorists as a cover for violent attacks. I would hope that the government didn't assert that the film caused violence, which based on what we know now is plainly incorrect. I think Bob Dugdale's point that Nakoula screwed his cast and crew is perfectly fair, though. I'm firmly opposed to any obeisance to anti-blasphemy laws, but I think the actors and crew of a movie should be able to offer informed consent before appearing in a movie likely to make them the subject of fatwas.

Mr. Nakoula's revocation proceedings required a probation officer (an employee of the judicial branch) to file a revocation petition and Judge Snyder (also in the judicial branch) to approve it. If the Obama administration — the executive branch — contacted the United States Probation Office and pressured the probation office to file revocation proceedings because Nakoula made the film, I think there should be a Congressional inquiry. I'm aware of the statement by Charles Woods, the father of the Navy Seal Tyrone Woods who was killed by terrorists in Benghazi, who says that Secretary of State Hillary Clinton told him that the government would punish the filmmaker. Mr. Woods is justifiably furious with the administration and Ms. Clinton's words to him are not to be taken at face value, so this report is not conclusive evidence to me. But it's a piece of evidence, and Congress might think it sufficient to start an inquiry. Under existing selective prosecution law it might not be unconstitutional for the administration to suggest that Nakoula's supervised release be revoked for conduct that would get anyone else revoked. Nakoula's conduct is absolutely the sort that does, and should, routinely result in revocation of supervised release. But we should know whether or not the administration had a hand in it, and there should be consequences — even if they are only political — if they did.

Nakoula Arrested: Update On "Innocence of Muslims" Filmmaker

Via Mark Bennett, I see that Los Angeles Times is reporting that Nakoula Basseley Nakoula, the filmmaker of the "Innocence of Muslims" film I've discussed here, has been arrested for supervised release violations (which the Times incorrectly calls probation violations).

Nakoula Basseley Nakoula, the filmmaker behind the controversial “Innocence of Muslims” movie that has sparked days of rioting across the Muslim world, has been arrested on suspicion of violating terms of his probation, federal authorities said.

He is expected to appear in federal court Thursday afternoon.

I've gone to PACER and verified that there is an under-seal pleading, the entry of which on the docket is consistent with the judge issuing a warrant based on a request from a probation officer:

PROBATION FORM 12 as to Defendant Nakoula Basseley Nakoula, ORDER OF THE COURT by Judge Christina A. Snyder. (gk) (Entered: 09/27/2012)

I've discussed before what Nakoula may have done that would inspire a revocation proceeding. As I said before, I suspect the issues will be (1) using computers and the internet to an extent that violates his terms of supervised release, (2) using an alias, and (3) using bank accounts and funds without disclosing them to his probation officer. Here is my post about his conviction, including a link to his judgment and commitment order with his terms of supervised release.

Like I previously said, the use-of-computers accusation is not one that I would normally expect to result in a revocation proceeding; I'd expect him to get a warning, unless the use of computers involved fraud, or unless he was a convicted hacker. However, given Nakoula's underlying fraud conviction and the $700,000 in restitution he owes, revocation proceedings would not surprise me at all if his probation officer determines that he used aliases and conducted undisclosed financial transactions. Remember: the limits on alias and undisclosed bank accounts isn't only designed to prevent him from committing fraud again; it's designed to make sure that he's paying as much restitution as he can. In fact, I would be very surprised if a guy with such a fraud conviction who produced a movie under an alias and engaged in undisclosed financial transactions didn't get hit with a revocation proceeding, whatever the nature of the movie.

The nature of the charges, and how the matter proceeds, will be evidence we should review to test the accusation some have made that the Obama Administration induced the U.S. Probation Office (an arm of the U.S. Courts, not of the executive branch) to investigate. If that happened, it's a matter of grave concern that should have serious consequences. But I'd like to see evidence of it before reaching any conclusion.

More as events warrant.

[Cry havoc, and let slip the accusations of me being an anti-free-speech Obamabot. 'tis the silly season.]

Edited to add: I'm seeing reports the arraignment was closed to the public and the media. That's incredibly unusual.

Edited to add again: Procedure for supervised release revocation is governed by Federal Rule of Criminal Procedure 32.1. To summarize, the steps are an initial appearance with a bail determination, a preliminary hearing to determine whether there is probable cause to believe the violation occurred, and then a full revocation hearing.

Another Edit: There's conflicting reports on what hearing was closed. ABC is reporting that (1) there were 8 violations alleged (which supports my suspicion that it's more than just using computers, and (2) that he was detained without bail based on both flight risk and danger to the community (those are the two factors judges consider under the federal bail laws in determining bail). Now, flight risk I can see; danger to the community sounds like bullshit to me, unless it's financial danger to fraud victims.

President Obama's Speech To The United Nations And The Defense of Free Speech

Today President Obama gave a speech to the United Nations in which he discussed the murder of Chris Stephens, the nature of America's defense of free speech, and the possibilities for the ongoing relationship between the United States and the nations of the Middle East.

One line from the speech is drawing a lot of attention:

The future must not belong to those who slander the prophet of Islam.

It's a bad line. When someone quoted it, I hoped it was misquoted. It's not. It is, however, quoted without context. In context, it's one of a few bad lines in a speech that is actually a very good defense of freedom of speech. The speech deserves to be read as a whole.

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Minor (But Suggestive) Update Regarding Nakoula Basseley Nakoula of "Innocence of Muslims" Fame

Earlier in my posts on Nakoula Basseley Nakoula of "Innocence of Muslim" fame I offered thoughts about why Nakoula's film-related activities might lead the U.S. Probation Office to start proceedings to revoke his supervised release in his federal fraud case.

Since then, I've been watching PACER for any indication that the probation officer has initiated revocation proceedings. That hasn't happened as of this writing. However, last night an attorney filed a request for approval of substitution of counsel in that fraud case — that is, a request for the judge's permission to appear on behalf of Nakoula in the place of his former attorney. Since the case is over, and wouldn't normally require any further appearance by an attorney — PACER still shows it as closed — the request strongly suggests that Nakoula and his attorney believe that probation revocation proceedings may be imminent. There would be no reason to file the substitution otherwise. Filing the substitution means that the new attorney will get automatic and immediate notification through PACER of any filing by the U.S. Probation Office. (I can sign up for automatic notification as well through a system set up for the "press" upon submission of "credentials." The identity of what "credentials" I would submit as a blogger is a matter of polite discussion with the clerk's office. I am strongly considering printing out the post where I coined the phrase "snort my taint.")

I'll follow up as circumstances warrant. Were I a betting man, I'd bet we won't see "he uploaded a video to YouTube" as a proposed violation; any computer-related violation will be based on more extensive use. I'd also bet that in any revocation proceeding we'll see claims about use of an alias and use of financial instruments that have not been disclosed to the probation officer.

Three Generations of a Hackneyed Apologia for Censorship Are Enough

In her Los Angeles Times opinion piece justifying prosecution of the author of the "Innocence of Muslims" video on YouTube, Sarah Chayes opens exactly the way I've come to expect:

In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. "The most stringent protection," he wrote on behalf of a unanimous court, "would not protect a man in falsely shouting fire in a theater and causing a panic."

Holmes' famous quote is the go-to argument by appeal to authority for anyone who wants to suggest that some particular utterance is not protected by the First Amendment. Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the "fire in a crowded theater" quote for two reasons, both bolstered by Holmes' fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying "well, some speech is protected by the First Amendment" is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don't have to rely on a 90-year-old rhetorical flourish to support your argument.

Holmes' quote is the most famous and pervasive lazy cheat in American dialogue about free speech. This post is not about fisking Sarah Chayes; her column deserves it, but I will leave it to another time. This post is about putting the Holmes quote in context, and explaining why it adds nothing to a First Amendment debate.

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Further Sunday Thoughts On "The Innocence of Muslims" and the Arrest of Nakoula

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.

A Few Stray Saturday Thoughts About The "The Innocence of Muslims" Video

I have a few thoughts today about the current state of events and prevailing discussions of the embassy attacks and the "Innocence of Muslims" video. I've added an "Innocence of Muslims" tag to keep my posts together. Since I'm on a Bataan Death March of AYSO games today, this will be brief. More next week.

1. I'm troubled by the Obama Administration contacting YouTube and asking them to "review" whether the "Innocence of Muslims" video violates their terms. YouTube had heard of it already. YouTube had gotten complaints already. The only function that contact from the administration served was to imply potential government involvement, possibly involving coercion. It's not censorship — yet. But it carries with it the implied threat of censorship. (Note: the government could have crafted a public approach that did not threaten coercion.)

2. We should be very careful to assume a causal relationship between the video and the mob violence. It's entirely possible — perhaps even probable — that the video is being manipulated as an excuse for violence by people who desire violence for political ends. (That might even include the filmmakers, by the way — "Sam Bacile" lying about the video being Israeli-backed seems almost calculated to increase its tendency to be used as a justification for violence.)

3. Many people are upset by Sam Bacile aka Nakoula Basseley Nakoula being detained and interviewed, apparently at the behest of probation officers. I think the situation bears careful watching [Edit: to be clearer, by that I mean that I am open to evidence that it was an administration-driven political arrest.] Based on 6 years as a federal prosecutor and 12 as a federal defense lawyer, let me say this: minor use of a computer — like uploading a video to YouTube — is not something that I would usually expect to result in arrest and a revocation proceeding; I think a warning would be more likely unless the defendant had already had warnings or the probation officer was a hardass. But if I had a client with a serious fraud conviction, and his fraud involved aliases, and he had the standard term forbidding him from using aliases during supervised release, and his probation officer found out that he was running a business, producing a movie, soliciting money, and interacting with others using an alias, I would absolutely expect him to be arrested immediately, whatever the content of the movie. Seriously. Nakoula pled guilty to using alias to scam money. Now he's apparently been producing a film under an alias, dealing with the finances of the film under the alias, and (if his "Sam Bacile" persona is to be believed) soliciting financing under an alias. I would expect him to run into a world of hurt for that even if he were producing a "Coexist" video involving kittens.

4. The relevant legal question if Nakoula is subjected to supervised release revocation, or prosecuted for a new crime, is whether he is being selectively prosecuted. To show that he is being selectively prosecuted, Nakoula would have to show (1) that others similarly situated have not been prosecuted, and (2) that the prosecution is based on an impermissible motive. The first prong is tough to prove. Like I said, I expect that most supervisees who produced a movie under an alias while on supervised release would get revoked.

5. I'm seeing some sentiment out there that there's something wrong with decrying Nakoula, his behavior, and his speech — as if it is inherently giving in to the barbaric mobs. Not so. I argued last week that the message of the U.S. Embassy in Cario was awful because its context and content accepted the censors' narrative (that speech can "hurt religious belief" and that the film is an "abuse" of speech, which usually is another way to say "not free speech"). But supporting free speech does not mean supporting the decency of the people uttering it. The Nazis who marched at Skokie were . . . well, Nazis. The Phelps clan is vile. Many bigots protected by free speech are profoundly awful people. And Joe Francis still exists. Though it's not required that we point out these people's scumbaggery when defending their speech, there's certainly nothing wrong with it. Nakoula seems to be an awful person. He's a bigot. He's a convicted fraudster. You can believe that the barbaric mob had no justification for murder and violence and still think that it's contemptible that Nakoula used an alias to blame the film on Israelis, possibly with the intent to inspire further strife between Muslims and Jews. Plus, according to statements by the actors and crew, Nakoula shot a generic old-times-in-the-desert movie and then, with the cast's name and faces attached to it, re-dubbed it into an anti-Muhammad screed without their knowledge — while protecting his own name with an alias. That's a freakishly contemptible thing to do even if you firmly maintain, as I do, that there's no excuse for violence every time someone disrespects your religious figures. Nakoula is no sort of hero; only rank partisanship can make him one.

6. We can't cave on this in the face of demands that we censor. We can't. Today it's bigoted videos. Tomorrow it's any representation whatsoever of Mohammed. What is it after that? Women depicted out of hijabs? Allowing female anchors to question men on the news? Why, if cultural censors are given the power to demand censorship of that which they find offensive, would they grow a thicker skin rather than a thinner one? Why, if barbarians are told that we will censor our societies and betray our fundamental principals if they kill innocents, would they stop killing innocents? (Yes, I said barbarians. I don't mean Muslims. I mean people who believe that violence is justified by speech the don't like. That includes not just extremist Muslims, but their Western apologists.)

7. Some Western apologists, believe it or not, include Western law professors who believe that the United States Constitution, specifically including the First Amendment, should be subservient to international treaties prohibiting speech that offends the religious. I'm not given to frequent use of rhetorical flourishes like this, but: the point at which the government attempts to make the First Amendment subservient to international treaty is the point at which violence against the government is morally justified.

Meet Nakoula Basseley Nakoula, Who Might Be "Sam Bacile," Anti-Muslim Filmmaker

Who is Sam Bacile, the dude who thinks that the Libya and Egypt embassy attacks were the fault of bad security, and who produced a vitriolic anti-Mohammed film, or portions thereof?

Well, there might be no such person. It may be an alias of a convicted fraudster named, among other things, Nakoula Basseley Nakoula.

I thought you might like to know about Mr. Nakoula, so I headed to PACER and downloaded some records from his case.

Here is the federal criminal complaint against him. It also serves as the application for a search warrant. The action starts in paragraph 7. Note: a federal criminal case starts in one of two ways: an indictment returned by a grand jury, or a complaint (almost always) by a magistrate judge. Cases started with a complaint are almost always supplemented with an indictment soon thereafter. Here, unlike complaints I have criticized in the past, the complaint is very professional. It has very good attribution — that is, it is clear how the affiant knows everything the says. The complaint contains a good narrative of the evidence against Nakoula.

Here is the indictment against Nakoula — the formal charges returned by the grand jury (meaning, the charges the U.S. Attorney's office decided to offer to the grand jury.) It has a narrative of the crime, but not the description of evidence.

Here is the Judgment and Commitment Order reflecting Nakoula's conviction and sentence. I note that it includes a condition of supervised release, as widely reported, that strictly limits computer and internet use:

7. Defendant shall not possess or use a device with access to any online service at any
location without the prior approval of the Probation Officer. This includes access through
any Internet Service Provider ("ISP"), bulletin board system, or any public or private
computer network system. Further, defendant shall not have another individual access the
Internet on defendant's behalf to obtain files or information that defendant is restricted
from accessing personally, or accept restricted files or information from another person;

8. Defendant shall use only those computers, computer related devices, screen/user names,
passwords, e-mail accounts, and ISPs approved by the Probation Officer. Computer and
computer-related devices include, but are not limited to, personal computers, personal
data assistants (PDAs), Internet appliances, electronic games, and cellular telephones, as
well as peripheral equipment, that can access, or can be modified to access, the Internet,
electronic bulletin boards, other computers, or similar media. Defendant shall use any
approved computers only within the scope of his employment. Defendant shall not access
a computer for any other purpose. Defendant shall immediately report to the Probation
Officer any changes in defendant's employment affecting defendant's access and/or use of
computers or the Internet, including e-mail;

9. All computers, computer-related devices, computer storage media, and peripheral
equipment used by defendant shall be subject to search and seizure, and subject to the
installation of search and/or monitoring software and/or hardware, including
unannounced seizure for the purpose of search. Defendant shall not add, remove,
upgrade, update, reinstall, repair, or otherwise modify the hardware or software on any
computers, computer related devices, or peripheral equipment without the prior approval
of the Probation Officer, nor shall defendant hide or encrypt files or data. Further,
defendant shall, as requested by the Probation Officer, provide all billing records,
including telephone, cable, Internet, satellite, and similar records;

I also note indications that Nakoula may — may — have cooperated with the government. Those indications are suggestive, but are not conclusive proof one way or the other.

So. People, Nakoula. Nakoula, my peeps. Talk amongst yourselves.

Edited to add: Scott thinks I should commit and say Sam is Nakoula if I think that. When I began to write the post, I hadn't reached that point. Now I have. I'll leave the original title and first paragraph as is, though. By the way, I am not relying on the anonymous government confirmation.

What Does It Take To Be A Professor At Penn And To Get An Opinion Published In USA Today?

Answer: apparently it takes . . . words fail me. It takes a level of aggressive vapidity and idiocy that . . . words are failing me again. Let me explain. No, there is too much. Let me sum up.

Anthea Butler is an associate professor of religious studies at Penn. Yesterday she called for the arrest of "Sam Bacile" — the "person" associated with the anti-Islam movie associated with violent riots in Libya and Egypt, whom I mentioned yesterday. I say "Sam Bacile" and "person" because it appears increasingly likely that "Sam Bacile" is a made-up persona, possibly of a convicted fraudster named Nakoula Basseley Nakoula. (Moreover, it's increasingly in doubt whether the worst violence in the embassy attacks was inspired by the film or just used the anti-film mobs as an opportunity to launch an assault.) Anyway, Prof. Butler called for his arrest on her Twitter account, then swiftly made her account private when criticized.

Good Morning. How soon is Sam Bacile going to be in jail folks? I need him to go now.When Americans die because you are stupid…

And people do to jail for speech. First Amendment doesn't cover EVERYTHING a PERSON says.—

Anyway, for reasons that passeth understanding, USA Today has now seen fit to run an opinion piece by Anthea Butler entitled "Why Sam Bacile deserves arrest." It's remarkable.

First — though this is a situation in which mobs are rioting, Americans have died, and the First Amendment rights of Americans are in question, Professor Butler chooses to frame the piece as being about the controversial nature of things she said on Twitter — things which she does not even specify or quote — and about her feelings justifying those tweets:

My initial tweet about Bacile, the person said to be responsible for the film mocking the prophet Mohammed, was not because I am against the First Amendment. My tweets reflected my exasperation that as a religion professor, it is difficult to teach the facts when movies such as Bacile's Innocence of Muslims are taken as both truth and propaganda, and used against innocent Americans.

Let me just say this: if a YouTube video produced by a convicted felon renders it difficult for you to teach kids smart enough to get into Penn about religion, then you might want to consider another profession that does not require communication skills.

Next up, this howler:

If there is anyone who values free speech, it is a tenured professor!

That unfortunate odor your smell is the result of everyone at The FIRE laughing themselves incontinent. In fact, American universities are at the forefront of stupid, stupid forms of censorship, as we frequently discuss here.


So why did I tweet that Bacile should be in jail? The "free speech" in Bacile's film is not about expressing a personal opinion about Islam. It denigrates the religion by depicting the faith's founder in several ludicrous and historically inaccurate scenes to incite and inflame viewers. Even the film's actors say they were duped.

A logic professor — excepting, perhaps, one at Penn — would give this an "F." The statement that the film "is not about expressing a personal opinion about Islam" does not flow from anything else Butler says. The opinion may be vile, and it may be expressed in a vile way intended to offend, but that does not make it less a personal opinion. Moreover, "is it a personal opinion?" is not the relevant First Amendment inquiry.

Bacile's movie is not the first to denigrate a religious figure, nor will it be the last. The Last Temptation of Christ was protested vigorously. The difference is that Bacile indirectly and inadvertently inflamed people half a world away, resulting in the deaths of U.S. Embassy [sic — sentence trails off in original]

Here Butler undermines her own "case" — such as it is — for jailing "Bacile." As anyone with a nodding familiarity with the First Amendment would know, whether Bacile can conceivably be prosecuted for "incitement" or any such crime depends on his intent to do so and on the immediate connection between his acts and the resulting violence. The First Amendment only permits punishment of "incitement" that is intended to cause, and likely to cause, imminent lawless action. Action that is "indirect" and "inadvertent" cannot be actionable incitement. You'd think that a college professor, before she spoke, would . . . you know, never mind. Even I can't carry that off.

Unfortunately, people like Bacile and Terry Jones, the Florida pastor who provoked international controversy by burning copies of the Quran, have a tremendous impact on religious tolerance and U.S. foreign policy.

What does that mean? Are there people who were tolerant of other faiths, but stopped being tolerant after they saw a YouTube video? Is U.S. foreign policy being driven by YouTube videos?

Case in point: Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, called Jones on Wednesday to ask him to stop promoting Bacile's film. Clearly, the military considers the film a serious threat to national security. If the military takes it seriously, there should be consequences for putting American lives at risk.

I had to read that three times to make sure I hadn't gone nuts. An American college professor — one who just paragraphs earlier announced that college professors are self-evidently supporters of the First Amendment — just said that speech should be punished by the government if the United States military thinks it should be. Is this real life?

While the First Amendment right to free expression is important, it is also important to remember that other countries and cultures do not have to understand or respect our right.

This is a true statement — other countries don't have to adopt or respect our legal system. But what does that have to do with whether someone can or should be prosecuted in America?

In short, having tweeted demands that an American be arrested for producing a movie, Anthea Butler writes a column that is mostly about her, in which she promises but utterly fails to explain why the filmmaker should be arrested.

Remember, this is a university professor, and this is a column USA Today saw fit to publish online. YOU SPEND FIFTY GRAND A YEAR TO HAVE PEOPLE LIKE THIS TEACH YOUR CHILDREN. (Well, actually, you probably spend fifty grand a year to have them skip her class.)

God help us.

(Edit: hat tip to Austin and Michael.)