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How Judge Davidson shot down Dickie Scruggs’s First Amendment argument

I think the upshot of Judge Davidson’s ruling today on Dickie Scruggs’s petition to set aside his guilty plea in Scruggs II is pretty simple:  “Well, you’re going to lose, but I’ll give you a hearing first.”  And that seems a reasonable response.

The opinion is primarily a response to Scruggs’s motion for judgment on the pleadings, which asserts that he had a First Ammendment right to inveigle his brother-in-law (Senator Lott) into whispering sweet nothings into Judge DeLaughter’s ear, while handing off a million bucks to DeLaughter’s buddy-and-mentor Ed Peters, all in a quite successful to rig the result in a case before Judge DeLaughter, Wilson v. Scruggs.

Scruggs contended if if ain’t cash it’s just trash (talk), and made an argument that all talk is First Amendment protected so sweeping as to possibly permit shouting fire in a crowded theater, all kinds of fraudulent schemes, and perhaps even a verbal contract to hire a hit on one’s nemesis.*

Judge Davidson does not show much patience with this argument:

Indeed, the constitutional guarantee of freedom of speech does not immunize “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S. Ct. 684, 93 L. Ed. 834 (1949). And “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Id at 502, 69 S. Ct. 684. Discussing promises that may be declared illegal without constitutional difficulty, the Supreme Court has stated:

No body politic worthy of being called a democracy entrusts the selection of leaders to a process of auction or barter. And as a State may prohibit the giving of money or other things of value to a voter in exchange for his support, it may also declare unlawful an agreement embodying the intention to make such an exchange. Although agreements to engage in illegal conduct undoubtedly possess some element of association, the State may ban such illegal agreements without trenching on any right of association protected by the First Amendment. The fact that such an agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited. agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited.

Brown v. Hartlage, 456 U.S. 45, 54-55, 102 S. Ct. 1523,71 L. Ed. 2d 732 (1982). “Neither the right to associate nor the right to participate in political activities is absolute in any event.” U.S. Civil Servo Comm ‘n v. Nat’l Ass ‘n o f Letter Carriers, AFL-CIO, 413 U.S. 548, 567, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973). “Offers to engage in illegal transactions are categorically excluded from First Amendment protection.” United States V. Williams, 553 U.S. 285,297, 128 S. Ct. 1830,170 L. Ed. 2d 650 (2008). See Ill., ex reI. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612, 123 S. Ct. 1829, 155 L. Ed. 2d 793 (2003) (“[T]he First Amendment does not shield fraud.”); R.A. V v. City ofSt. Paul, 505 U.S. 377,420, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (Stevens, J., concurring) (“Although the First Amendment broadly protects ‘speech,’ it does not protect the right to ‘fix prices, breach contracts, make false warranties, place bets with bookies, threaten, [or] extort.’ “); United States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982) (,’The [F]irst [A]mendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose.”); United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir. 1975), cert. denied, 424 U.S. 955, 96 S. Ct. 1430, 47 L. Ed. 2d 361 (1976) (“[E]xtortionate speech has no more constitutional protection than that uttered by a robber while ordering his victim to hand over the money, which is no protection at all.”); United States v. Marchetti, 466 F.2d 1309, 1314 (4th Cir. 1972), cert. denied, 409 U.S. 1063,93 S. Ct. 553,34 L. Ed. 2d 516 (1972) (“Threats and bribes are not protected simply because they are written or spoken; extortion is a crime although it is verbal.”); United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970) (“[S]peech is not protected by the First Amendment when it is the very vehicle of the crime itself.”). “[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” United States v. 0 ‘Brien, 391 u.s. 367,376,88 S. Ct. 1673,20 L. Ed. 2d 672 (1968).

Despite Petitioner’s arguments to the contrary, enforcement of the honest services fraud statute does not criminalize “simply engaging in political speech” and mere political advocacy….

Next: How Judge Davidson told Dickie Scruggs he was likely to lose but would get a hearing.
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*The examples are my own, but consistent with the examples in the parentheticals in Judge Davidson’s opinion.

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