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June 07, 2007


Orin Kerr

S. Cotus,

What's the argument that the CA9 was wrong? With all due respect to my former co-counsel Ben Coleman, counsel for the defendants, his arguments struck me as frivolous. What are the "pretty big issues" you have in mind?


Thank you for commenting, Professor Kerr.

As I see it, the big issue, is allowing a government agent to participate in political discourage on behalf of an organization that is the subject of government scrutiny – by writing a “policy statement” for the “privacy committee.” The panel gets around this issue by saying that although the 1st amendment rights of NAMBLA might have been violated, the 1st amendment rights of the defendant were not. The panel just says “We have not found any cases where an indictment was dismissed because the preceding investigation allegedly violated the First Amendment rights of a third party.” But, I think there is more to this. The defendant has an interest in his organization being able to viably participate in politics – without interference from the government. By using this organization to trap the defendant, the agent’s “fake” enthusiasm and counsel to the organization (and by proxy the defendant) deprived the defendant of a 1st amendment right to interact in politics. I gave the Federalist Society example, but you could imagine a think-tank being infiltrated by an FBI agent that agrees to write articles which are not that effective because he doesn’t believe anything he says and he is just trying to get the employees to smoke pot so they can be put away.

Orin Kerr

Thanks for the response, S. Cotus. Yes, the First Amendment issues are more interesting than the 4th A issues. I tend to think the key dynamic here wasn't the identity of the group, but the fact that courts have never known what to do with the NAACP v. Alabama line of cases in the context of legitimate criminal investigations. In a realist sense, those cases were about the civil rights movement, and stopping efforts to squash it illegitimately. It's actually kind of hard to know how those cases should work in the case of legit criminal cases, if they should apply at all; I agree that the court didn't grapple with the issues very well, but I tend to think it was for reasons behind the identity of the group infiltrated. That's my 2 cents, anyway; I haven't looked into this one closely, and mostly know about it because GW's moot court problem this past year dealt with a very similar question.


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No thanks.

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