It is so true: Ashton meet Dick, Dick this is Ashton….

Just a few weeks ago, on September 27, 2011, the Fifth Circuit affirmed a district court’s dismissal of an indictment, in which the Government sought to criminalize speech. U.S. v. O’Dwyer, Slip Op, 2011 WL 4448739 (5th, 2011). There, the Government at least used an unambiguous statute, 18 U.S.C. § 875(c), which criminalizes the interstate communication of certain threats. O’Dwyer sent an email to the chambers of a federal bankruptcy judge, trying to influence him to grant certain relief, including the following language: “suppose I become ‘homicidal’? Given the recent ‘security breach’ at 500 Poydras Street, a number of scoundrels might be at risk if I DO become homicidal.” Id., at *1. The trial court and the Fifth Circuit held that even this scary language designed to influence a judge was protected by the First Amendment, such that the Government’s indictment must be dismissed. O’Dwyer was granted a judgment on the pleadings.

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