I think solicitation is indeed relevant; as my initial post
noted, pastoral counseling of a specific parent, telling the parent to engage
in illegal child abuse (assuming the discipline is indeed illegal) might
qualify as solicitation of crime and not just abstract advocacy. But I would
think that general preaching of the propriety of disciplining children by
hitting them in a particular way would be more on the Brandenburg / Hess v.
Indiana general advocacy side of the line than on the Williams solicitation
side of the line.
This having been said, I realize that the solicitation/advocacy
line is not clearly defined. Do you have any sense of how such a line could
properly be drawn, including in light of Hess?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, May 17, 2012 8:03 AM
To: Law & Religion issues for Law Academics
Subject: Re: Solicitation, Conspiracy and Caminiti (was: Minister convicted for
teaching parishioners "to punish children by hitting them on the bare buttocks
with wooden dowels")
Eugene: While reading the government's brief in al-Bahlul,
www.lawfareblog.com/wp-content/uploads/2012/05/2012-05-16-Bahlul-Brief-Respondent.pdf<http://www.lawfareblog.com/wp-content/uploads/2012/05/2012-05-16-Bahlul-Brief-Respondent.pdf>,
I noticed that the argument in the alternative at pp. 78-79 repeats the
government's argument from the Lynne Stewart case that if the government simply
denominates public advocacy of criminal conduct as "solicitation," it
apparently avoids the need to satisfy Brandenburg analysis. (In the Stewart
case, the CTA2 also appeared to rely in part on the fact that the intended
audience was especially susceptible to the speaker's admonitions, analogizing
to a crime boss's call to arms, 590 F3d at 115-16 -- certainly relevant to the
minster and congregants case.). I've previously raised concerns about this
solicitation argument here:
http://balkin.blogspot.com/2011/07/begolly-indictment-and-first-amendment.html
But even if one thinks this move is inconsistent with Brandenburg, at a minimum
one needs to deal with the recent case law supporting the "solicitation" theory
in discussing the Caminiti case.
(I'd also note that the public accounts of the Caminiti case state that he was
convicted of "conspiracy," not solicitation. Wholly apart from the First
Amendment, is it really the case that he can be said to have "agreed" with the
parents to engage in child abuse under Wisconsin law?)
On Mon, May 14, 2012 at 12:24 AM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
I'm not sure why it should matter whether a minister is
speaking in a church with a building, or to a small group of people; nor is it
clear to me to what extent the law can take into account how much people "fear"
their leaders on spiritual grounds, whether they be the leader of a small group
or the Pope. The Court's First Amendment jurisprudence has, quite rightly I
think, never tried to draw a line between small charismatic religious groups
and bigger, more established religious organizations.
As to teaching church members how to do something, I agree that
if he were teaching little-known techniques for more effectively committing
crimes, we might have a crime-facilitating speech question, which raises a
different (and unresolved) set of issues. But it sounds like "teaching" here
is just another word for "urging people to act in a particular way," in the
same sense as we can talk about any church's "teachings." So that's why this
strikes me as quite likely a Brandenburg case, though as I noted at the outset
more specific counseling might make it a Williams solicitation case.
Eugene
...
On May 13, 2012, at 7:10 PM, "Volokh, Eugene"
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
I would think that such a conviction would likely be
unconstitutional under the Free Speech Clause, given Brandenburg v. Ohio, even
without regard to any special religious freedom claim (note that Wisconsin
courts read the Wisconsin Constitution following Sherbert/Yoder). It seems to
me that teaching parishioners the propriety of such conduct - even illegal
conduct - doesn't fit within the Brandenburg exception, because it isn't
intended to yield imminent lawless conduct; and I don't think the general
teachings would fit within the United States v. Williams solicitation
exception, since no specific act is being discussed. On the other hand, it's
possible that pastoral counseling of a specific parent, telling the parent to
engage in illegal child abuse (assuming the discipline is indeed illegal) might
qualify as solicitation of crime and not just abstract advocacy. Or is this
analysis mistaken?
Relatedly, could ministers of churches that teach that
marijuana is a sacrament be prosecuted for conspiracy to engage in criminal
possession or receipt of marijuana? Could imams who preach the propriety of
jihad be prosecuted for conspiracy to engage in jihad, just based on the
teaching alone?
Eugene
http://host.madison.com/wsj/news/local/crime_and_courts/motion-to-dismiss-charges-against-black-earth-pastor-denied/article_3c17db6a-9b01-11e1-967a-001a4bcf887a.html
A Dane County judge on Thursday denied a motion to dismiss charges against a
Black Earth pastor convicted of conspiracy to commit child abuse for advocating
the use of wooden rods to spank children as young as 2 months old.
Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in
March of eight counts of conspiracy to commit child abuse for instructing
church members to punish children by hitting them on the bare buttocks with
wooden dowels to teach them to behave correctly, in keeping with the church's
literal interpretation of the Bible.
The motion to dismiss the charges alleged Caminiti had been deprived of his
constitutional right to religious freedom.
Circuit Judge Maryann Sumi found that Caminiti had "a sincerely held religious
belief" as a Christian fundamentalist that requires using a rod to discipline
children beginning at a young age. But Sumi said Caminiti failed to show the
state's child abuse statute "places a burden on his sincerely held religious
belief."
"Scripture doesn't specify how and when the rod should be used," Sumi said,
adding that Caminiti also was willing to modify the church's practices to
comply with the law....
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