Barrett Brown’s detractors frequently claim that he threatened violence against an FBI agent and/or his family, and some cite this as a main reason why they cannot support him. They repeat this mantra uncritically, despite the fact that it’s directly contradicted by the evidence. They point to a YouTube video he posted which led to his arrest. While perhaps ill-advised, his actual words in that video are much more nuanced and a closer reading doesn’t support the claim. As with any charges in which free speech is implicated, there is always a very high bar to prove a threat of physical harm, and this case does not meet the test. We will explain why.
In his September 12, 2012 video, Barrett said:
"so that’s why Robert Smith’s life is over… And when I say his life is over I don’t say I’m gonna go kill him, but I am gonna ruin his life and look into his fuckin’ kids, because Aaron Barr did the same thing, and he didn’t get raided for it."
Brown, upset at the FBI agent’s threats to charge his mother (who was coerced to plead guilty and is now serving 6 months probation), said that he was going to ruin Smith’s life, but he explicitly and immediately added that he didn’t mean it as a physical threat. Since he believed that the agent was abusing the law and his rights by harassing his family, what he meant is that he hoped to find dirt on this agent and other cases he was involved in, so that he could establish and expose a pattern of corrupt tactics. The government has spun this to allege that he was seeking to publish “restricted personal information” about the agent, and in support of this they say that someone conducted a Google search — which by its very nature cannot uncover non-public information.
With regard to “look[ing] into his [expletive] kids” Brown was referring to a lack of ethics on the part of HBGary executive Aaron Barr. He’s employing a particular logical argument here which requires some background knowledge to understand. During the Team Themis scandal, Palantir’s chief counsel Matt Long had signed off on a campaign to attack and discredit activists and journalists (including critics of the US Chamber of Commerce), and set them up for fraud using methods that were borderline criminal. This included going after their families. As Think Progress reported, “This tactic of targeting opponents’ personal lives and family was not simply a random event. Rather, it was a concerted and deliberate effort to use anything possible to smear the Chamber’s political opponents.”
Brown said, “I know what’s legal, because I know what’s been done to me.” He justified the fact that his investigation of the lead agent would include that agent’s family, because that’s literally what his antagonists did to him. His ethics would never have allowed this if those boundaries had not been transgressed by the FBI first. As Brown’s lawyer Charles Swift has commented, “When it comes to your family, it’s hard to be rational.” There’s more to this: the informant he speaks about, while working with Backtrace Security, had targeted an ex-girlfriend of his. Besides, there are indications that Agent Smith’s children are not children at all, but fully grown adults.
So that’s very clearly not a credible threat of violence, but instead a promise to expose wrongdoing. Next?
"As such any armed officials of the US government, particularly the FBI, will be regarded as potential Zeta assassin squads…and I will shoot all of them and kill them, if they come and do anything, because they are engaged in a criminal conspiracy, and I have reason to fear for my life not just from the Zetas but from the US government."
Here Brown asserted his right of self-defense, which is afforded to him in Texas and many other jurisdictions, where it’s completely legal to defend one’s property from intruders. As the motion to dismiss makes clear, the First Amendment requires that in order to sustain a conviction on a charge concerning threats, there must be a “true threat” to inflict physical harm. Instead of demonstrating that Brown truly intended to physically harm Smith, whom this statement is not directed toward, the government has failed to state an offense and merely cited generic things said by Brown. Moreover, courts have held that in order to qualify as a “true threat”, a statement must be addressed to a specific individual and it cannot be expressly conditional or hypothetical. While many might disagree with it, Brown’s threat to shoot and kill any armed squads invading his apartment is qualified with the words “if they come and do anything,” making it conditional in nature. Recently, a grand jury refused to indict a Texas man who shot and killed a cop who was breaking into his apartment in a no-knock raid, like Brown only said he would!
Nonetheless, the above quote also requires context in order to fully parse. In November 2011, Barrett assisted an Anonymous operation against the Zetas Mexican drug cartel. After his address was posted online by an ex-military contractor associated with HBGary, he believed he was legitimately in danger. He fled to Brooklyn, New York and stayed there for several weeks until things died down. As he detailed in the video, his mom was also placed at risk because of that action, and she had to stay elsewhere for a few weeks. He was clearly very upset by this interference with his life and rightfully took it personally. And for a long time he disavowed and avoided using similar tactics in response.
After being raided by the FBI in March 2012, Brown stressed that Smith told him that the reason the search warrants with his and his mother’s address on it were sealed and not made public is because of the Zetas. Since even the government acknowledges the potential threat to him from the Zetas, and they have protected the documents revealing his location because of it, Brown asserted that he would not be able to distinguish another FBI raid from Zeta assassin squads, and so he had no options except to exercise his right to self-defense. As soon as he announced his intent to expose the criminal conspiracy against him and file lawsuits against certain parties for palpable threats to his livelihood, he was conveniently picked up.
He closed the video by saying that “I have no choice left but to defend my family, myself, my girlfriend, my reputation, my work, my activism, my ideas…” So the charged conduct was manifestly defensive rather than offensive, and the mistaken arguments of his critics only feed into the government’s flawed prosecution. The government has presented no evidence that Brown intended to impede an investigation or actually posted restricted personal information in order to incite a crime of violence, as demanded by the statutes. Just like another thing often said about Barrett Brown, that he was a spokesperson for Anonymous, the idea that he threatened violence against an agent and his family is simply not true. The table below, excerpted from the defense motion, illustrates how his online postings don’t rise to the required level as to be actionable under the law:
We also note that the first indictment constitutes the absolute least of his combined charges. By any measure, even if he were to be convicted, which we doubt will happen, he has already served more than enough time (a year and a half). Meanwhile, many viewers of Brown’s videos have reasonably concluded that he appears to have been under duress or in a manic state and was thus not fully responsible for his actions (diminished mental capacity)—which, if true, raises more doubt about the government’s case. On that subject we will simply add that Brown was forthright about his struggles with substance abuse and was withdrawing from Suboxone and other medications at the time, and had previous diagnoses of ADHD and depression. One need only look at his Twitter timeline to see the constant harassment and abuse he was taking from online actors.
Besides ruling out statements made under duress, the Supreme Court has additionally held that political hyperbole must be distinguished from true threats. Barrett Brown has had a very public career as a satirist and humorist who contributed to National Lampoon and The Onion. In light of this, it’s hard to tell whether the controversial language that the government quotes in their indictment was intended as facetious, as much of Barrett’s words are. Considering that he was unarmed and didn’t resist arrest, the idea that he should be detained because of harmless yet inflammatory speech, while discounting the egregious extent to which the government has violated his rights, is absurd.
As a target of a concerted campaign of intimidation by the FBI and its supporters, we think that Barrett Brown deserves sympathy and that the circumstances surrounding his arrest are ostensibly mitigating. While no one was ever harmed by his words, it’s important to point out that he has expressed regret and does not stand by all of his own behavior. A week after his arrest, he wrote:
I cannot excuse the mistakes I myself have made on both the strategic and tactical levels in my short career. I shudder when I look back on some of the things I wrote or said when I got my first real taste of power at the dawn of 2011, and I continue to bring shame upon myself and upon my family and work by some of the things I say even lately… Along with other nonsense I have said, felt, written throughout my life, many of these things originate from my own fears and weaknesses. I am humiliated at not being able to protect my own mother from the FBI, or to shield my own girlfriend from watching heavily-armed men step on my spine as I scream in pain. I cannot forget how my mom cried on March 6th after the FBI had left with my equipment and hers, and how she whispered through tears that she wanted to be able to protect me from prison but couldn’t; I will never forget the look on my girlfriend’s face as the federal thugs swept through my efficiency apartment with guns drawn and safeties off, in search of hidden assailants and non-existent weapons. That these things are unjust and increasingly insane does not change the fact that they are the result of my own behavior, my own miscalculations, my own choices.
We’re still awaiting the Court’s response to the defense’s motion to dismiss, which we encourage you to read if you’re further interested in this topic.