FEDERAL JUDGE RULES THAT FIRST AMENDMENT DOES NOT PROTECT MAN ACCUSED OF PLOTTING TO KIDNAP, RAPE AND KILL WOMEN

New Jersey resident Michael Van Hise, Stuyvesant High School librarian Robert Asch, Massachusetts Veterans Affairs police chief Robert Meltz allegedly chatted over the internet about about kidnapping, raping and killing women – including Vanhise’s wife, his stepdaughter, his sister-in-law, and the sister-in-law’s minor children.

According to this article:

Vanhise was [already] tucked away in jail when undercover FBI agents met with Meltz and Asch starting in March, culminating in meetings that led to their arrest. Meltz allegedly instructed the first undercover agent on April 14 how to dispose of the body of his female colleague at “a desolate location in the woods in upstate New York.” Meltz said that wild animals would likely find and destroy her body before law enforcement could find it, prosecutors claim.

The next day, the same agent who spoke to Meltz met with Asch, who brought “two bags of tools intended to be used in the kidnapping, rape, torture, and murder of UC-3, including, but not limited to, a Taser gun, rope, a meat hammer, duct tape, gloves, cleaning supplies, zip ties, a dental retractor, two speculums, 12-inch skewers, pliers, a wireless modem, and a leg spreader,” the indictment states.

The men claimed that they lacked the intent to commit the crimes with which they were charged, and that they were merely taking part in online fantasy role-play.   On this basis, Van Hise argued that the kidnapping charge against him was barred by the First Amendment.  According to Van Hise, the kidnapping statute “is unconstitutional as applied to [him], because it prohibits his conduct[,] which consists of pure speech.”  Van Hise argued that:

“there is no evidence that [he] did anything other than talk about kidnapping. He did not have the ability, the intention, or even the actual desire to commit a kidnapping. He did not agree with anyone else to take these actions. Nor did he attempt to persuade or induce, his co-defendants or any other person to actually commit a kidnapping.”

In a December 31, 2013 decision, Judge Gardephe, who sits in the Southern District of New York, rejected this argument.

Citing U.S. v. Rahman, a Second Circuit case from 1999, Judge Gardephe pointed out that although the Second Circuit has stated that “courts must be vigilant to insure that prosecutions are not improperly based on the mere expression of unpopular ideas,” it has also made clear that where “the evidence shows that . . . speech[ ] crossed the line into criminal solicitation, procurement of criminal activity, or conspiracy to violate the laws, [a] prosecution is permissible.”  Judge Gardephe noted that ”[t]he First Amendment lends no protection to participation in a conspiracy, even if such participation is through speech.”

The court’s decision in this regard is grounded in a 1982 decision by the United States Supreme Court, New York v. Ferber, 458 U.S. 747 (1982).  In that case, the Supreme Court held that ”[i]t rarely has been suggested that the constitutional freedom for speech … extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”  Id. at 761-62.

Because there was evidence that Van Hise’s “speech” crossed the line into a conspiracy to violate the law, the court determined that Van Hise’s prosecution was permissible.

 

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