Rejecting First Amendment Facial Challenge to Statute Criminalizing Teaching How to Make Explosives While Knowing Person Intends to Commit Crime of Violence

US v. Arthur: Arthur ran a business in which he trained “the average person to defend themselves” against “a tyrannical government,” producing literature noting that some of the tactics he taught “are wartime tactics” and “may be highly illegal.” In 2020, one of Arthur’s customers had “a fatal incident,” leading the FBI to send an undercover customer to Arthur. The undercover, who told Arthur that “the ATF’s been to my house” are “probably coming back” and “I want to be ready,” got in-person training from Arthur on “how to fortify his residence.” This included using attack dogs and an electrified fence to create a “fatal funnel” for approaching agents, at whom the undercover could “start lobbing . . . grenades on them with his freaking shotgun.” Arthur also said it “wouldn’t be a bad idea” to put explosive devices “right up around the doors,” noting that he kept one on his front porch.

Arthur was arrested and charged with multiple offenses, including under 18 U.S.C. §842(p)(2)(B), which prohibits a person from “teaching or demonstrating to any person” how to make or use explosives “knowing that such person intends to use” that information for, or in furtherance of, a crime of violence. He moved to dismiss that count as being facially overbroad under the First Amendment. The district court denied the motion and Arthur was convicted at trial on all counts. He was sentenced to 300 months in prison, based partly on the application of a terrorism enhancement under the Guidelines (although well below what the Guidelines recommended).

A divided Fourth Circuit affirmed Arthur’s convictions and sentence. Noting that Arthur’s challenge was a facial one, the court noted that the issue was whether §842(p)(2)(B) covered a substantial amount of protected speech. The court, however, concluded that it “is not at all clear” that it prohibits any protected speech. That is because the speech involved falls into the category of speech integral to criminal conduct which is not covered by the First Amendment. In particular, the court pointed to the statute’s requirement that any violation involve knowing that the recipient of the information is going to use it in relation to a crime of violence. Thus, the speech covered by the statute is a “far cry” from the kind of abstract advocacy of violence that is protected by the Fourth Amendment. The court also concluded that the terrorism enhancement applied as the undercover agent’s purported crime was one of terrorism and Arthur’s conduct involved, or was intended to promote, it.

Judge Gregory dissented, noting “concerns about the wide range of speech encompassed by the statutory language as well as the novelty of criminalizing speech when the speaker lacked specific in tend to commit a crime.”