Combatting "False Narratives": D.C. Circuit Refuses To Block Judge Limiting The Speech Of Jan. 6th Defendant
We have previously discussed controversial sentences handed down in cases involving rioters on January 6th, including sentencing orders that, in my view, violate First Amendment rights. That included the case of Daniel Goodwyn, who pleaded guilty to a single misdemeanor count of entering and remaining in a restricted building. That crime would ordinarily not involve any jail time for a first offender.
However, Judge Reggie B. Walton of the United States District Court for the District of Columbia decided that he would use the case to regulate what Goodwyn was reading and communicating with a chilling probation order. After the case was sent back by the D.C. Circuit, Walton doubled down on his extraordinary order. Now the D.C. Circuit has refused to hear an emergency appeal.
Judge Walton has attracted controversy and criticism over his public comments about former President Donald Trump and the other issues. He caused a stir in Washington after doing an interview with CNN in which he rebuked former President Donald Trump for his criticism of judges and their family members. Walton previously called Trump a “charlatan,” and said that “I don’t think he cares about democracy, only power.”
Critics charged that Walton’s public statements ran afoul of Canon 3A(6) of the Code of Conduct for United States Judges, which states:
“A judge should not make public comment on the merits of a matter pending or impending in any court.”
Walton then triggered criticism over his handling of the Goodwin case.
The case involved Daniel Goodwyn, 35, of Corinth, Texas, who pleaded guilty on Jan. 31, 2023, to one misdemeanor count of entering and remaining in a restricted building or grounds without lawful authority. That is a relatively minor offense, but Walton imposed a 60-day jail sentence in June 2023 with these ongoing conditions on his online reading and speech.
Walton reportedly noted that Goodwyn spread “disinformation” during a broadcast of “Tucker Carlson Tonight” on March 14, 2023 and ordered that Mr. Goodwyn’s computer be subject to “monitoring and inspection” by a probation agent to check if he spread Jan. 6 disinformation during the term of his supervised release.
After accepting the plea to a single misdemeanor, Walton expressed scorn for Goodwyn appearing “gleeful” on Jan. 6 and his “egging on” other rioters.
He asked his defense counsel “why I should feel that he doesn’t pose a risk to our democracy?”
As a condition for supervised release, DOJ pushed the monitoring conditions and found a judge who seemed eager to impose it.
The order reflects the utter impunity shown by the Justice Department in its pursuit of January 6th defendants. Justice Department official Michael Sherwin proudly declared in a television interview that “our office wanted to ensure that there was shock and awe … it worked because we saw through media posts that people were afraid to come back to D.C. because they’re, like, ‘If we go there, we’re gonna get charged.’ … We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.”
Sherwin was celebrated for his pledge to use such draconian means to send a message to others in the country. (Sherwin has left the Justice Department and is now a partner at Kobre & Kim).
Walton was rebuked by the United States Court of Appeals for the District of Columbia for a surveillance order of Goodwin to detect any spreading of “disinformation” or “misinformation.”
In my new book, “The Indispensable Right: Free Speech in an Age of Rage,” I discussed concerns over the cases like Goodwyn’s and their implications for free speech. I participated in the coverage on January 6th and criticized President Trump’s speech while he was giving it. I disagreed with the legal claims made to oppose certification. However, the “shock and awe” campaign of the Justice Department, in my view, has trampled on free speech rights in cases that range from Goodwyn to the prosecutions of Trump himself.
Many of us were relieved when appellate judges (Gregory Katsas, Neomi Rao, and Bradley Garcia) rebuked Walton and held that “[t]he district court plainly erred in imposing the computer-monitoring condition without considering whether it was ‘reasonably related’ to the relevant sentencing factors and involved ‘no greater deprivation of liberty than is reasonably necessary’ to achieve the purposes behind the sentencing.”
They sent the case back but, to the surprise of few, Judge Walton proceeded to double down on the monitoring while implausibly declaring “I don’t want to chill anyone’s First Amendment rights.”
For some reason, Walton believes that barring an individual from reviewing and engaging in political speech does not “chill” his First Amendment rights.
Most of us were appalled by the riot and the underlying views of figures like Goodwyn, who is a self-proclaimed member of the Proud Boys. He was rightfully arrested and should be punished for his conduct. The question is not the legitimacy of punishment, but the scope of that punishment.
Prosecutor Brian Brady detailed how the Justice Department has in place a new system using artificial intelligence to monitor the reading and statements of citizens like Goodwyn. The Justice Department brushed aside the free speech concerns since Goodwyn remains under court supervision, even though he pleaded guilty to only a single misdemeanor.
Brady described a virtual AI driven thought program. The justification was that Goodwyn refused to abandon his extreme political views:
“Throughout the pendency of Goodwyn’s case, he has made untruthful statements regarding his conduct and the events of the day, he has used websites and social media to place targets on police officers who defended the Capitol, and he has used these platforms to publish and view extremist media. Imposing the requested [monitoring] conditions would protect the public from further dissemination of misinformation… [and] provide specific deterrence from him committing similar crimes.”
So now federal courts can use a single misdemeanor for unlawful entry in a federal building for less than 40 seconds to “protect the public from … dissemination of misinformation” on the government.
That was all Walton needed to hear. Relying on a record supplied by the Justice Department, Walton said in the hearing that Goodwyn is still engaging “in the same type of rhetoric” that fomented the Jan. 6 violence. He added that he was concerned about Goodwyn spreading “false narratives” when we are “on the heels of another election.”
Walton merely added the DOJ record to his renewed sentencing conditions.
Defense counsel then returned to the D.C. Circuit to seek an emergency stay but Judges Florence Pan and Bradley Garcia denied the motion, holding that “Appellant has not satisfied the stringent requirements for a stay pending appeal” to prevent further “false narratives.”
That drew a pointed dissent from Judge Gregory Katsas who stated:
Daniel Goodwyn pleaded guilty to one count of knowingly entering or remaining in a restricted building or grounds, in violation of 18 U.S.C. § 1752(a)(1). Goodwyn entered the Capitol and remained inside for a total of 36 seconds. He did not use force to enter, did not assault police officers, and neither took nor damaged any government property. When police instructed Goodwyn to leave the building, he did so.
...
On appeal, this Court vacated the condition … We further instructed the district court, if it wished to impose a new computer- monitoring condition on remand, to “explain its reasoning,” to “develop the record in support of its decision,” and to ensure that the condition complies with section 3583(d) and with the Constitution.
The district court reimposed the same condition on remand. In an oral hearing, the court said that Goodwyn had made statements on social media that “can be, it seems to me, construed as” urging a repeat of January 6, particularly “on the heels of another election.” In its written order, the court elaborated on what it called Goodwyn’s “concerning online activity.” This included posting exhortations to “#StopTheSteal!” and “#FightForTrump,” soliciting donations to fund his travel to Washington, posing for a livestream while inside the Capitol, confirming his presence there by text, and tweeting opinions such as: “They WANT a revolution. They’re proving our point. They don’t represent us. They hate us.” Id. at 3–4. In addressing what the court described as Goodwyn pushing “false narratives” about January 6 after-the-fact, the court, quoting from the government’s brief, led with the fact Goodwyn “sat for an interview with Tucker Carlson on Fox News Channel.” Id. at 4. Finally, in concluding that computer monitoring was reasonably related to Goodwyn’s offense, the court reasoned that monitoring would prevent Goodwyn from raising funds to support potential future crimes and would separate him “from extremist media, rehabilitating him.”
Judge Katsas stated that Goodwyn was likely to prevail on the merits and that his colleagues allowed the denial of First Amendment rights to continue in the interim.
The Walton order reflects the erosion of support for the First Amendment, even on our courts. It is reminiscent of our previous discussion of how courts have criminalized “toxic ideologies” as part of the crackdown on free speech in the United Kingdom.
Here is the D.C. Circuit order: United States v. Goodwyn