When Malice Masquerades as Free Speech
Does the First Amendment supersede the Sixth Amendment to a fair and impartial trial?
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Constitutional rights are the bedrock of who we are, and they didn't come to us easily. People have suffered, bled and died for the very democratic freedoms we celebrate today.
In particular, free speech, our right to freely express ourselves is deeply engrained in our conception of what it means to be free, American, and ultimately democratic.
And there are a variety of heated opinions on whether or not such a fundamental liberty should be infringed upon for any reason whatsoever.
Constitutional rights are the bedrock of who we are, and they didn't come to us easily. People have suffered, bled and died for the very democratic freedoms we celebrate today.
In particular, free speech, our right to freely express ourselves is deeply engrained in our conception of what it means to be free, American, and ultimately democratic. And there are a variety of heated opinions on whether or not such a fundamental liberty should be infringed upon for any reason whatsoever.
NPR's On The Media recently devoted an episode to the threats of “free speech absolutism” with a panoply of guests all devoted to upending the status quo: Andrew Marantz, author the “Free-Speech is Killing Us”; P.E. Moskowitz, author of “The Case Against Free Speech”; Susan Benesch, director of the “Dangerous Speech Project”; and Berkeley professor John Powell.
In all actuality it wasn't so much a debate as much as it was a diatribe against the literal interpretation of the John Stuart Mills conception of free speech. But the basis of their arguments is a reiteration of the obvious: We can be harmed by something more than just physical violence; and, free-speech can be weaponized.
Whether we recall the surge of teen bullying on social media several years ago, or the bizarre pandering that takes place on both sides of the political aisle, or the fact that Facebook now reports that fake news takes in more oxygen than true news the painting on the wall is clear. Just like any freedom, when abused it can be deadly.
What On The Media didn't touch on was what should be done when malice masquerades as free speech in the justice system. With instances of hate speech, bullying, libel and incitement there are certain safeguards in the form of laws to protect us from ourselves.
Brandenburg v. Ohio is currently our legal standard for speech, limiting government intervention to instances of “imminent lawless action.”
A standard that doesn't address what should be done when free-speech taints or poisons the well of the justice system, weighing the scales of justice in the state’s favor.
Consider the following excerpt from an article published on inman.com on August 20, 2004:
The man arrested last night as a suspect in the shooting of Garland Taylor, an Albuquerque Realtor and church deacon, has a checkered past of financial improprieties and financial instability.
What's your initial impression of this suspect? Now add this to your opinion:
[Suspect] worked from 1999 to 2002 as a securities dealer, but was barred from the industry association after an investigation found that he took money from a customer that was intended for an investment.
According to the investigation, [the suspect] diverted a check for $5,053.24 and took $6,050 in cash from a customer’s $22,103.24 investment. He “retained possession of these funds and used them for his own personal use and benefit,” according to New Mexico Securities[.]
Now what is your impression? Better or worse? Again, add the following:
Also, [suspect] reportedly provided for the preparation and delivery of an account statement “to conceal from the customer that he had taken their funds and used them for his personal benefit,” and he “failed to respond to NASD (National Association of Security Dealers) request for information.”
It's unlikely that your opinion of this suspect was improved. Let's keep adding:
According to court documents, [the suspect] and his wife reportedly may have lived in Tucson, Arizona. And investigators are looking into reports that [the suspect] may have been married to two women. Court records state that [the suspect] may also have used the name Mario L Martinez in the past.
Thus far nothing has been said about why the suspect is a suspect for murder. He's apparently a conman, a lowscale Bernie Madoff, a once licensed broker who years prior to his arrest as a murder suspect defrauded his clients to the amount of $11,103.24. He's also potentially a bigamist. And the plot thickens:
Bernalillo County Sheriff Darren White said today that since the office released a photo of [the suspect], the office has been “inundated with calls from people implicating him in a variety of (alleged) white-collar crimes.”
White also confirmed that the department has received information that [the suspect] “may have been involved in securities fraud here in New Mexico.”
To place this in context this statement was given less than 12 hours following the release of the suspect’s photo on the local evening news the previous night. New Mexico viewers then “inundated” the Sheriff’s office with calls and accusations related to “white-collar crimes.”
Bernalillo County Sheriff’s spokeswoman Erin Kinnard said that [the suspect] may have contacted other Realtors in the Albuquerque area and the owners of the high priced vehicles who were attempting to sell their vehicles, and in some cases may have introduced himself as a corporate lawyer from Arizona.
Kinnard said that this pattern of contacting car owners and Realtors is believed to have occurred “over the last several weeks.”
As you mentally digest these excerpts your opinion might be that we're dealing with a serial offender, someone who was stalking Realtors and high-priced vehicle owners.
A real predator, a monster, someone who we are relieved to know that he's been arrested, and horrified to think that he was permitted to walk free for so long.
Someone like this is so obviously guilty it would be a travesty to justice if the judge were to even entertain the possibility of bail. You have my vote to just skip the trial and move straight to sentencing. Then after that either execute him or throw the key away.
These might be some of the thoughts you're having as you read these excerpts and reading the entire article won't do much to change that. The journalist whose name appears on this article is Glenn Roberts Jr., from the site inman.com. The suspect in question was me.
Seventeen years ago this First Amendment expression of freedom, published less than 12 hours following my arrest served as the basis of local law enforcement’s investigation and former- DA Kari Brandenburg’s prosecution against me for Garland Taylor's murder.
In both the state’s opening and closing statements are instances and extensions of the very accusations made against me in this article. Accusations unsubstantiated by any law-enforcement investigation.
Scales of Justice by Getty Images
Journalism has always involved the reporting of inconvenient truths. Scandal, lawlessness, corruption are all considered fair game in America. People have a right to be informed about anything that should be considered public knowledge, and being readily informed about criminality is definitely on the list. But freedoms exercised can sometimes be dangers exposed.
Free-speech absolutists, however, say that it would harm them if their self-determination through free expression were to be infringed upon. What kind of harm? Psychological.
In other words, Glenn Roberts Jr. would have suffered psychological harm if he had been prevented from writing what he wrote. But, many of you might be asking yourself, on what basis should he have been prevented from writing what he wrote?
Was it factually untrue and therefore libelous? Did his statements incite a riot or lead to violence? All valid questions, and to answer them requires a closer look at his reporting.
It's one thing to inform the public and quite another to soil someone's character out of maliciousness. For instance, the public absolutely needed to know that a murder suspect had been arrested, and likewise entitled to any relevant details that didn't damage the integrity of the investigation or the judicial process.
But this article offers no relevant details outside of the criminal charges, the $2 million cash-only bond or, in paraphrasing Sheriff Darren White:
Chavez has apparently not been previously charged with violent crimes or convicted for violent crimes.
It's when we step into the relevancy and timing of the claims being made in this article is when questions start to arise. Any respectable journalist knows that an accusation of wrongdoing does not bring with it a presumption of guilt. People can have nefarious reasons for filing accusations.
Which is precisely why claims of criminality must be investigated, Due Process adhered to, constitutional protections enforced, a trial, a jury, there is a whole judicial circus that goes along with this. The fact that an accusation is made does not make the allegation true.
At the time of my arrest I had more pressing issues on my mind above-and-beyond the opportunistic reporting of a journalist who I had never heard of. Which means that the peculiar timing or outdated content of the article didn't register with me at the time, and maybe it never would have had one of my podcast followers not brought the article to my attention.
The thing is, Roberts never even afforded me the opportunity of rebuttal so as to point out the obvious to him. And not wanting to commit the same faux pas, prior to writing this piece I made numerous attempts to reach him (email through his publisher on Inman.com; messages through Twitter @isciwriter) and no response was ever forthcoming. So the truth is I don't know what the motives or inclinations for his reporting were.
Was he just young and ambitious? This was one of the questions I asked him. Along with pointing out the obvious that it seems highly improbable that within a matter of hours, from the time of my arrest to the publication of this article , that he could've devoted a thorough investigation to the accusations filed against me with the NASD, or even known that I had years prior been a licensed securities broker unless someone had handed him this information.
Photo of Glenn Roberts Jr.
But let's assume for a moment that Roberts simply stumbled upon the lead when he saw my photo on the local New Mexico news on August 19, 2004 at about 9 PM. He then contacts Sheriff Darren White or his spokesperson and learns about the inundation of calls and “white-collar crime” allegations. Roberts then takes the securities fraud lead and proceeds to contact NASD, BINGO! complaints had been filed. He doesn't bother to track down the supposed defrauded clients, he simply takes a regularity agency’s word for the validity of the claims made. He accomplishes this overnight between the hours of 9 PM and 9 AM the following day. Because by the morning of August 20, 2004 he's already published this article.
I'll let you be the judge. Either that's what happened or someone else handed him a dossier and told him to sit on it until the appropriate moment. For the sake of argument let's assume Roberts was not telepathic, a member of the CIA, nor did he have the journalistic clout to get NASD regulators out of bed to answer questions in the middle of the night. Much less get a response from NYlife Securities, a Sheriff, or court records – overnight. The obvious implication being that someone else prepared this dossier of smut prior to my arrest. And this detail should very much get our attention.
There are a limited number of circumstances under which a smut piece like this gets editorial approval and sees the light of the day. Either, (a) I decide to run for political office; (b) I marry or become involved with someone famous; or, (c) I get charged or arrested for a high profile crime. Outside of these circumstances a story like this doesn't get published. And a journalist isn't about to sit on this information waiting for any of these improbable outcomes unless they have reason to believe that one of them is imminent.
Nobody cares about allegations never pursued by law-enforcement unless you're already in the media for some other reason. Because criminal allegations not pursued by law-enforcement were either not pursued for lack of proof or merit to the allegations, or due to corruption. And if it's the latter then that in itself is news worthy, like former DA allegedly using her power to shield son from prosecution.
I don't believe that a journalist would've taken the time to investigate something that would never see editorial approval unless one of the above three outcomes materialized and he had reason to believe that they would. The same way I don't believe he could've investigated and written this article overnight. Which leaves us with the likelihood that someone gave him this story knowing perfectly well that one of these improbable outcomes was about to occur. And with this thought, let's walk together through the world of the obvious.
At the time of my arrest I had not exercised my former-licensed profession as a securities broker for over two years. The complaints filed against me with the NASD had long since been passed over by law-enforcement.
The NASD ruled against me because I failed to respond to its inquiries, and since those inquiries never arrived at either of my residences in Mexico or Arizona, it simply wasn't possible for me to have responded.
But, since we’re taking a moment to step into the world of the obvious, then allow me to state the obvious: If I had stolen a client’s money that would've been reported to law-enforcement, the local police or FBI. If a business steals your wallet you don't contact the Better Business Bureau, you contact the police.
Two Park Square Albuquerque offices where Mario Chavez worked as a licensed broker.
Are we to believe that these unnamed victims of what they alleged as blatant fraud never contacted the police? I don't know many people who wouldn't have contacted the police for the alleged amounts lost.
And a claim like this wouldn't have taken two years to investigate. For the FBI more like two minutes. Either there is evidence to substantiate the claim and make an arrest or there's not.
If after two years of not having practiced as a licensed securities broker and there was still no formal investigation, criminal charges filed, or arrest, that speaks volumes.
Roberts reported that I had created a false account statement. Are we to believe that the FBI wouldn't have arrested me for fraud or other crimes if this were the case? Were white-collar crimes not being prosecuted in those years?
Roberts admitted the obvious, the NASD ruled against me by “default” because I failed to respond to their inquiries. Default is not guilt. Notifications not received or responded to is a regulatory issue involving the validity of a securities license I had no intention of using.
In regards to Sheriff Darren White saying that his office was “inundated with calls” accusing me of white-collar crimes. Why would my photo I have triggered this reaction from the public?
Think about this for a moment. My two previous, professional positions were Executive Vice President of Marketing and Sales for Brazen Tech Inc. Prior to that I was a president of Venzu, LLC, dba Venzu Technologies.
My name and photo was openly presented on both websites. Mario L. Martinez was not a criminal alias, it was part of my entire family name Mario Lucas Martinez- Chavez, common amongst Hispanic families to carry both last names.
However, I later opted to use only my mother’s last name when I was still in the University in 1996, I graduated under this name, and pursued my professional licenses under this name.
Later, in Mexico, I legally took on both of my mother’s last names Chávez-Gómez. This is openly known and I gladly would have shared this trivial information with any journalist who would’ve taken the time to ask for it.
The notion that my photo would've triggered an inundation of phone calls and criminal allegations seems like something a politician would say to justify his department’s decision to arrest one suspect over another.
To this day my lawyer and I have never received notification for any charges or any crimes outside of what I was originally arrested for. Are we to believe that after seventeen years the Bernalillo County Sheriffs office is still investigating these white-collar crimes?
As mentioned, if Robert's article would've been presented for editorial approval any amount of time prior to my arrest it’s unlikely that any respectable editor would've published it.
Allegations of wrongdoing is only news worthy when you're famous, a politician, or at the very least when there's an actual open investigation. But apparently if the subject of your proposed smear campaign is in custody with an open count of murder, you’re free to publish whatever you want.
The law as it stands now is that Robert’s article is protected by the First Amendment as free speech. According to speech absolutists, if his speech were to be infringed upon he would suffer psychological injury for not being permitted self- determination through free expression. But, what about my injury?
The injury that comes about when a journalist chooses a very conspicuous moment to publish a smut piece, reporting on allegations that had zero relevancy to the case at hand.
Allegations that took place years before and, most importantly, allegations that law-enforcement had already passed on. This brings up certain questions.
Who was the individual who handed this story to Robert's? How did this individual know that I would be implicated in a murder? And, what relationship existed between that person, myself, and Dennis Melin, ex-father-in-law and primary individual threatening my life prior to my arrest, since the victim’s wallet was found in his gym locker room in Tucson, Arizona, at the time he was registered as present?
As I've always said, the crime for which I was convicted doesn't make sense. The only beneficiaries of this crime are individuals who law-enforcement and former-DA Brandenburg never cared to scrutinize.
If my defense attorney hadn't been distracted by his personal interests he would've noticed and investigated the obvious: the source of the article was linked to the orchestrators and beneficiaries of this crime.
For more than seventeen years now Robert’s journalistic expression of free speech has harmed me far and beyond the psychological. His article served as a basis for the state arguing and the court denying me pretrial release.
It served as the basis for former-DA Brandenburg’s prosecutorial theory, unsubstantiated but the judge allowed it. It contaminated public opinion and thereby the jury. And, this expression of freedom, has served as the basis for at least one innocence organization to deny me assistance in my ongoing fight for exoneration from my wrongful conviction.
How many lawyers, supporters, or advocates have potentially read this article and opted not to help me based on it? Which brings us to the doorway of a much larger issue and questions:
Brandenburg KOAT TV
Should we be allowed to publish whatever we want if in doing so it infringes on someone's constitutional right to a fair and impartial trial? It's one thing to report the relevant facts, and quite another to hand the state a fictional prosecutorial theory.
Recently it has been brought to my attention that Glenn Roberts Jr. lost his battle to cancer on March 26, 2021. He will now never answer my questions. But knowing what we now know about the legitimacy of this reporting.
Does this First Amendment right to freely express himself, then, supersede my rights, now, to seek legal help, advocacy, and not have my reputation forever tarnished by these unsubstantiated claims?
Yes, we are free to express ourselves. We’re free to speculate and publish tabloid smut. But when the state with it’s “awesome” prosecutorial power charges someone with a serious crime, where either death or life in prison are at the other end of that prosecution, then perhaps, for a short period of time, our freedom of expression should be of secondary importance to our societal need to have fair and impartial trials.
A life is hanging in the balance and that should supersede journalistic expressions that go beyond the reporting of relevant facts.
Robert’s death doesn't erase or alter the damage that his actions have done and continue to do to my life. I don't know him or his motives for having published this smut piece hours after my arrest. Until presented with evidence to the contrary I'll assume that he was merely young, ambitious, and possibly naïve to the overarching ramifications of his actions.
I'm not attacking the man he became. I'm merely pointing out the obvious: His decision to facilitate my enemies with an unsubstantiated smear campaign has had a catastrophic impact on my life, and on my family's lives.
Despite his struggle and ultimate loss to cancer my battle continues, and the blow that he struck when he published his article is a blow that I'm still feeling today.
The aforementioned NPR episode of On The Media didn't address these issues. The guests called for changes on how free-speech needs to be regulated, with no clear assessment to how that should be accomplished.
The journalist Matt Taibbi recently wrote on the issue of free speech, “Yes, speech can be harmful, which is why journalists like me have always welcomed libel and incitement laws and myriad of other restrictions, and why new rules will probably have to be concocted for some of the unique problems of the Internet age.”
Let us hope so.
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