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Criminal Accessory or Real-Time Reporting? FBI Raids Home of Man Who Tweeted Police Movements During G-20

We enjoy a constitutional right to free speech in the country. It is not an absolute right to say just anything we want, though. For example, we cannot falsely defame someone, we cannot falsely shout “fire” in a crowded movie theatre and spark a stampede, we cannot incite to riot.

It is this last example that I want to talk about right now. The New York Times is reporting:

On Thursday, F.B.I. agents descended on a house in Jackson Heights, Queens, and spent 16 hours searching it. The most likely reason for the raid: a man who lived there had helped coordinate communications among protesters at the Group of 20 summit in Pittsburgh.

The man, Elliot Madison, 41, a social worker who has described himself as an anarchist, had been arrested in Pittsburgh on Sept. 24 and charged with hindering apprehension or prosecution, criminal use of a communication facility and possession of instruments of crime. The Pennsylvania State Police said he was found in a hotel room with computers and police scanners while using the social-networking site Twitter to spread information about police movements. He has denied wrongdoing.

Thus far, there is no allegation that this man asked anyone to riot; I do not know if his communications helped any lawbreakers to evade arrest, but it would seem to be the opposite. The police were monitoring his transmissions, so it would seem that it would make it easier for the police to track the protesters’ movements; doesn’t it?

A criminal complaint in Pennsylvania accuses him of “directing others, specifically protesters of the G-20 summit, in order to avoid apprehension after a lawful order to disperse.”

“He and a friend were part of a communications network among people protesting the G-20,” Mr. Madison’s lawyer, Martin Stolar, said on Saturday. “There’s absolutely nothing that he’s done that should subject him to any criminal liability.”

In fact, in instances of police over reaching—think of the Rodney King video—real-time reporting avoids the “he said, she said” , Rashamon effect that happens with action reports. There is no time to filter things to make them fit a preset narrative.

Go read the entire Times article–it makes it sound like law enforcement is not drawing a line between federally protected speech and incitement to riot. I am very curious to know the particulars of what was actually transmitted by this man.

I am also very concerned about the potential precedent that is being set–and it’s not just bloggers who should worry. Traditional media journalists were arrested and roughed up at the 2008 Republican National Convention, and lately Members of Congress seem to have become addicted to Twitter. The wrong legal precedent in this case could cause a whole mess of people a world of hurt.

Look, It is a crime to help someone evade arrest if you know they have committed a crime. It’s called being an accessory after the fact (I show up at your door, tell you I have just robbed a bank and the cops are chasing me. You hide me under the bed, and lie to the cops when they ask if you have seen me. I escape out your fire escape); that’s a crime.

The quote in the article says, "cops are picking up anyone who looks like a protester, keep your friends safe." Well, protesting is not a crime, it’s political speech—the most protected kind of speech.

Breaking a window is a crime. If this man sent out a twitter that said, "Sam broke a window, the cops are chasing Sam down main street, go obstruct the cops and help Sam get away," then they might have a case.

I am very curious to know the details of what went out over this communications network, and what legal steps the prosecution is taking to distinguish between political speech and real time reporting versus criminal accessory conduct and incitement to riot.

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.