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Tuesday, March 12, 2013

State courts and the First Amendment

One of the great debates in Federal Courts/Civil Rights Litigation is over parity and whether state courts can or will vigorously protect and enforce federal constitutional rights. Most obviously, Younger abstention--and the criticism of Younger--reflects the divide on this belief.

But consider a case such as People v. Oduwole, in which an Illinois intermediate appellate court (in the rural western part of the state, no less) unanimously reversed a conviction for attempting to make a terrorist threat, where the threat consisted of little more than words scribbled on a piece of paper (he claims they were rap lyrics) and buried in the back of his car. While not explicitly a First Amendment case, the court emphasizes that, in the absence of any substantial step towards threatening someone, Oduwole's "writings, as abhorrent as they might be, amount to mere thoughts." It's not clear that a federal judge, even one steeped in life tenure, guaranteed salary, and the professional orientation of the federal judiciary, could have said it better.

On the other hand, perhaps in federal court the trial judge would have made that statement, rather than having a jury convict in less than four hours and forcing the defendant to appeal a conviction before gaining his release.

Posted by Howard Wasserman on March 12, 2013 at 12:45 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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(Apologies if similar from me is posted twice. My first seems to have disappeared. This will be a nutshell version in any event.)

Good outcome overall, I'd say.

But Howard, is the condescension for "rural" Illinoisans really necessary?

P.S. Mt. Vernon is in Central IL, and closer to Indiana than to Missouri.

Posted by: concerned_citizen | Mar 12, 2013 1:37:00 PM

I'm not sure that's condescension as much as reality: Small communities in the middle of Illinois, like similar communities in Indiana, Kentucky, or Iowa, are not exactly known for being receptive to First Amendment claims from people writing about shooting up schools.

Posted by: Howard Wasserman | Mar 13, 2013 7:52:08 AM

Beg pardon if the word condescension was misapplied. I work with a number of Chicagoans who are all very dismissive of any part of their state south of, for example, Tinley Park, so the comment "in the rural western part of the state, no less" (coming from a double Northwesterner) seemed like more of that.

So, back to the case, what actually happened here? The young man in question was unreasonably convicted on the charge here, in particular because he made no steps - at all - to communicate any terrorist threat. So it's a drop-kick that he was improperly convicted of that charge.

On the other hand, what he wrote was that he was going to commit a VT-like massacre, and he did appear to have taken steps toward that goal, having bought (or ordered purchase of, not clear which) 4 semi-auto handguns like the VT shooter used.

So did the prosecutors more or less baffle that rural, Western ILL jury with BS, confusing them with the idea that taking substantial steps toward some other goal could pinch hit with substantial steps at making a terrorist threat? If so, that goes back to the original question, where in the world was the trial judge in all this?

Posted by: concerned_citizen | Mar 13, 2013 8:24:27 PM

Re: concerned's first comment, Typepad seems to have recently changed something with how long comments are handled. Several of mine disappeared here and at the Faculty Lounge. According to Typepad, "Lengthy comments and comments containing a lot of links are likely to be held as suspected spam." I suspect there's a bunch of long comments now in Prawfsblawg's spam folder.

Posted by: Bruce Boyden | Mar 13, 2013 10:42:22 PM

Thanks Bruce. I had seen some similar concerns mentioned particularly in the post discussing anonymity, although this case seems different. The comment did load and was present for maybe an hour or so (when I swung back by here). Then at some point later it was no longer here. It also was not overlong; approximately the same as my second comment above. Oh well. I'll exhaust my non-food related French with "c'est la vie".

Posted by: concerned_citizen | Mar 14, 2013 3:50:41 PM

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