This Man’s Protest Is Free Speech. Courts Called It a Felony.
(Bloomberg Opinion) -- We go through life thinking the First Amendment is followed in the U.S. In practice, that isn’t always true. A case in point is that of Gunther Glaub, who was convicted and sentenced to five years’ probation for a quirky protest in which he sent the bill for his new Chevrolet Camaro to the U.S. Department of Agriculture — and scribbled on it, “Thank you for paying this debt.”
Astonishingly, prosecutors went after Glaub on the theory that sending the government this invoice and a few other bills, including one for his wife’s student loan and another from his credit union, violated the federal law against submitting false claims to the government. I wrote about the prosecution in 2016, urging the federal district court to throw out the case.
It didn’t. A Colorado jury convicted Glaub of five felony charges of submitting false claims to the government after a trial in which the jury wasn’t told by the judge that his actions might be protected free speech. The prosecutors sought a prison sentence, but the judge imposed the lengthy probation, a fine and community service.
What remains for Glaub is only a last ditch try to get the U.S. Supreme Court to take note — a legal maneuver that’s the equivalent of a Hail Mary pass, given that the 10th Circuit didn’t so much make new law as ignore the law as it exists.
Glaub’s lawyers, one of whom is a former student of mine who first brought the case to my attention, did a good job of presenting his free-speech defense.
Both at trial and on appeal, they made it clear that the documents Glaub sent to the finance director of the USDA were expressions of his idiosyncratic belief, connected to the sovereign-citizen movement, that the federal government owes it to its citizens to pay off their personal debts. (As for why Glaub believes this, suffice it to say it is a convoluted theory that has to do with FDR and the gold standard.)
For good measure, they also argued that the documents weren’t “claims” under the meaning of the relevant law, 18 U.S.C. § 287, because (obviously) there’s no government program that would allow the USDA to pay off citizens’ personal debts.
The district court said if Glaub actually intended to defraud the government, that wouldn’t be protected by the First Amendment. That sounds superficially true: Fraud isn’t covered by free speech, whether it’s against a private citizen or the government.
But the court went on to say it wouldn’t consider whether Glaub’s claims were obviously speech, not fraud — because that depended on his intent, which was for the jury to decide. Glaub understandably asked the judge to instruct the jury that his free speech was protected. The court said no.
Once the jury convicted Glaub, the court said it didn’t need to consider the First Amendment — because the jury had determined that his intent was to defraud.
The 10th Circuit upheld this outcome. First, it said that it wasn’t up to the jury to decide whether Glaub’s actions were free speech, because free speech is an issue of law for the judge, not one of fact for the jury.
The appeals court then said that “because the jury found [Glaub’s documents] were false claims, Glaub’s speech was not protected by the First Amendment.”
Take a moment to consider how absurd the court’s ruling is as a matter of common sense. The judge essentially said he couldn’t address the free speech claim until the jury ruled — then he said the jury had decided the free-speech claim so he didn’t have to address it. That cannot be right.
It’s also bad constitutional law, for multiple reasons.
First off, before the case reached a jury, the district court judge should have analyzed whether Glaub’s actions were speech on their own terms — objectively, not subjectively. The answer would have been yes. The sending of the bills with the “Thank you for paying” note could not have been understood by any reasonable person to constitute a claim of any kind. It shouldn’t matter if Glaub thought the government should pay his debts — neither he nor anyone else could have expected that to happen, so the documents were inherently a protest.
Second, even if Glaub’s documents somehow technically were false claims, they were also certainly protests — and protected by the First Amendment.
It happens all the time that a political protest is a technical violation of the law. You don’t lose your free-speech rights in that situation.
As the Supreme Court explained in landmark 2010 case of Holder v. Humanitarian Law Services, when a criminal law applies to a situation because of something the defendant has said, the court must apply strict scrutiny and ask whether the law in question serves a compelling government interest and is narrowly tailored to achieving that interest.
The upshot is that, unless something remarkable happens, a man will forever be a felon for expressing weird political beliefs that are protected by the First Amendment. One of my New Year’s resolutions, this or any year, is not to let that happen without saying something about it.
Even if the law didn’t target Glaub for his words but solely for his conduct, as in the draft-card burning case, U.S. v. O’Brien, the court would still have had to consider the free-speech claim and apply intermediate scrutiny. In my view, Glaub’s conviction couldn’t survive that lower standard, either.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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