Now that Milo Yiannopoulos 15 minutes appear to have expired - thank you, Small Gods! -- it’s worth a moment or three of our time to ponder whether he might have unintentionally made himself vulnerable to a criminal investigation of his sexual activity. More specifically, has he invited a seizure and search of his personal property - his computers, for example - for his remarks concerning sexual relations between adult males and underage boys?
This might seem a creepy and sensationalist topic for an article here, but it also has implications for criminal investigations of dissenting free speech in The Age of the Orange Snowflake. You’ll see how below.
First Amendment scholars and the courts basically divide speech into two categories: “protected” and “unprotected.” Protected speech is the kind that can’t be punished under our constitutional system via civil or criminal sanctions (libel lawsuits or criminal sedition prosecutions, for example). Unprotected speech can be criminally or civilly sanctioned.
The ACLU succinctly describes a useful way of distinguishing between protected and unprotected speech:
Two fundamental principles come into play whenever a court must decide a case involving freedom of expression. The first is "content neutrality"-- the government cannot limit expression just because any listener, or even the majority of a community, is offended by its content. In the context of art and entertainment, this means tolerating some works that we might find offensive, insulting, outrageous -- or just plain bad.
The second principle is that expression may be restricted only if it will clearly cause direct and imminent harm to an important societal interest. The classic example is falsely shouting fire in a crowded theater and causing a stampede. Even then, the speech may be silenced or punished only if there is no other way to avert the harm.
Protected speech in the United States usually includes “mere advocacy” of even the most extreme positions on matters of public interest, however odious the content might be. For example, a speaker in the U.S. can assert the Nazi Holocaust never occurred, and there generally is no way to governmentally or privately sanction this speech in our courts. This is not the case in other countries, where Holocaust denial is a crime.
Unprotected speech can be criminally or civilly sanctioned. For example, a private person can sue a newspaper for defamation when it gets its fact wrong - even by mere mistake - if the publication harms the person’s reputation.
Of course, there’s a continuum connecting the protected and unprotected poles of speech. Sticking with the defamation example above, a “public figure” in the U.S. - a government official or celebrity, for example - can’t successfully sue for defamation even on the exact same misstatements made in the private-person example unless the public figure can establish that the publication recklessly or knowingly published false and defamatory information about the public figure.
The basic purpose of this public-figure exception to defamation laws is to ensure that debate on issues of public importance - and connected criticism of public officials - can be robust in this country and free of government retaliation and censorship. Of course, neither the Orange Snowflake nor any of his minions apparently understand or value anyone’s free speech but their own, but that’s no surprise, right?
So, let’s take a moment to remind ourselves that dissent in the Age of Orange is still protected speech, and let’s dissent loudly and continuously ‘til it isn’t.
By this path, we return to Mr. Yiannopoulos - not that we really ever want to. His departure from the marketplace of ideas (H/t Justice Douglas) could have happened much sooner for my taste.
Regardless, Milo’s fall from conservative grace was precipitated by circulation of remarks he made on the web about - for want of better phrasing - “intimate relations” between adult males and underage boys. These comments weren’t new, but after conservatives elevated him to icon of edgy, politically incorrect free speech, and the Conservative Political Action Conference decided to feature him as a speaker, the Reagan Battalion, a conservative blogger, re-posted his comments and the Milo Moment ended.
So...could Milo get in legal trouble for apparently extolling sexual activity between adults and boys under the age of consent? Probably not. Mere advocacy of such relationships is probably protected speech.
However, in the same video, Milo also talks about parties he attended in California and sexual activities he observed there between adults and other males who might have been underage. More recently, he reiterated his comments about being at such parties.
And thus Milo sails into more perilous legal waters.
The activities Milo described might have involved persons younger than the legal age of consent. And, therefore, an investigator or prosecutor who focuses on the crime(s) of sexual abuse of children might get interested in what Milo claims he saw and knows. A prosecutor or investigator then might want to invite Milo to a local prosecutor’s office for an informal chat about Milo’s friends and social activities. A prosecutor might even consider seeking a warrant to seize his computers and smartphone and search them for evidence of such criminal activity.
Search-and-seizure law starts with the 4th Amendment to the U.S. Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The 4th Amendment, as it’s been interpreted, sets the national lower bound for an acceptable factual basis for a finding of probable cause. States can establish stricter standards for probable cause than does federal law.
A federal or state prosecutor or investigator, therefore, must persuade a judge that “probable cause” exists as a basis for the judge to issue a search warrant. A prosecutor could try to use Milo’s remarks about those parties as a basis for probable cause. A threshold question would be whether those remarks are alone sufficient to establish probable cause.
This is what the U.S. Department of Justice considers to be probable cause (pdf link) for seizing and searching computers:
The probable cause necessary to search a computer or electronic media is probable cause to believe that the media contains or is contraband, evidence of a crime, fruits of crime, or an instrumentality of a crime….According to the Supreme Court, the probable cause standard is satisfied by an affidavit that establishes “a fair probability that contraband or evidence of a crime will be found in a particular place.
In all likelihood, however, an investigation of any alleged criminal conduct in which Mr. Yiannopoulos might have been involved would begin in a state-court criminal-law system, unless there was an interstate component to the alleged conduct, such as trafficking in children across state lines.
In California, (pdf) where Milo said he attended these parties, the probable-cause standard requires
...the issuing magistrate...to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
In other words, California hews closely to the federal standard for probable cause.
Of course, a prosecutor might lose this argument. The judge might find that Milo’s remarks do not give rise to a “fair probability” that Milo has witnessed and/or participated in any criminal activity. Then again, because child sexual abuse, child pornography, and trafficking in children are horrific, a judge might err on the side of caution and want to issue a warrant for Milo’s property.
In summary, there are a lot of “mights” in those last few ‘graphs, but Milo would be well advised to consider putting a competent criminal lawyer on retainer.
He might need one.