P. Kevin Morris
BARNES MORRIS KLEIN & YORN
1424 Second Street
Santa Monica, California 90401
(310) 319-3939

Floyd Abrams
Susan Buckley
CAHILL GORDON & REINDEL
80 Pine Street
New York, New York 10005
(212) 701-3000

Attorneys for Amici Curiae
Content Commerce LLP
and Steven Brill

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

This brief amici curiae is respectfully submitted on behalf of Content Commerce LLP and its Chairman and Chief Executive Officer, Steven Brill, in support of the motion of defendant Kevin Mitnick for clarification of the terms of his supervised release.

Amici are Content Commerce LLP ("Content Commerce") and its Chairman and Chief Executive Officer Steven Brill. Content Commerce is in the final preparatory stages of launching a new web-based media business, Contentville. Contentville will offer books, magazines and other publications and materials for sale to the public over the internet. The site will also present expert analyses, monthly columns, product reviews and other commentary on a wide variety of print and electronic publications.

In March of this year, Content Commerce approached Mr. Mitnick to ask him to write a monthly column for Contentville, critiquing consumer computer magazines. We should make clear at the outset that Mr. Mitnick would not be required to use a computer for this assignment and would not have access to any computers, to the website itself or to the internet in connection with his work for Contentville. It was anticipated instead that Mr. Mitnick would submit typewritten columns or dictate them over a land-line telephone. Under the proposed arrangement, Mr. Mitnick would be paid $750.00 per column. Additionally, he would receive a $5,000.00 advance plus fifty percent of the profits from the sales of a planned e-book which is to include other articles authored by Mr. Mitnick. Mr. Mitnick accepted the offer subject to his obtaining the consent of his probation officer. Mr. Mitnick advised Content Commerce that he was confident that the permission would be granted because the Court's terms of supervised release did not preclude him from engaging in journalistic activities.

Notwithstanding the fact that Mr. Mitnick has written numerous articles for other publications, has testified before Congress on the subject of computer security and has spoken publicly on a variety of issues concerning the computer industry since his release from prison, Mr. Mitnick's request for permission to write a column for Contentville was denied by the Probation Office on the ground that the request was somehow inconsistent with the conditions of supervised release imposed by the Court as part of Mr. Mitnick's sentence. We submit this brief amici curiae to urge that the Probation Office's interpretation of this Court's Order is incorrect and that the actual conditions imposed by this Court simply cannot be read to lead to a result so offensive to the First Amendment.

There is no doubt that a criminal defendant forfeits certain civil rights as a result of having engaged in criminal conduct. But even in the post-conviction context, the Supreme Court has stressed that content-based restrictions on the First Amendment rights of criminal defendants can rarely be sustained. Striking down New York's "Son of Sam" law as unconstitutionally overbroad, the Supreme Court cautioned:

Simon & Schuster v. New York State Crime Victims Board, 502 U.S. 105, 116 (1991)(quoting Cohen v. California, 403 U.S. 15, 24 (1971)).

As the Court of Appeals for the Ninth Circuit has made clear, in imposing conditions of probation or supervised release that impact rights otherwise protected by the Constitution, courts must tread both sensitively and narrowly. United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9^th Cir. 1975)("[W]hen fundamental rights are curbed it must be done sensitively and with a keen appreciation that the infringement must serve the broad purposes of the Probation Act.") See United States v. Terrigno, 838 F.2d 371, 374 (9^th Cir. 1988)("[I]f conditions are drawn so broadly that they unnecessarily restrict otherwise unlawful activities, they are impermissible.")

On their face, the actual conditions imposed by the Court do not tread insensitively in dealing with Mr. Mitnick's right to engage in expressive activity. Indeed, they reflect this Court's stated intentions that Mr. Mitnick be treated fairly and that the conditions of his supervised release be interpreted reasonably. However, in interpreting this Court's conditions in a sweepingly overbroad way, we respectfully submit that the Probation Office has crossed constitutional boundaries.

By letter dated April 12, 2000 the Probation Office advised Mr. Mitnick as follows:

Letter of Larry Hawley to Kevin Mitnick, April 12, 2000. As Mr. Hawley's letter correctly reflects, one of the conditions of supervised release imposed by the Court provides that Mr. Mitnick "shall not act as a consultant or advisor to individuals or groups engaged in any computer related activity." Judgment and Probation/Commitment Order, June 27, 1997 at 2. It is that condition on which the Probation Office relies to support its view that Mr. Mitnick may be barred from all public speaking, writing or other journalistic activities during the course of his supervised release - in short, that he is subject to a sweeping prior restraint on his expressive activities. This Court's Order cannot be read to impose so sweeping – and unconstitutional – a restriction.

As interpreted by the Probation Office, the Court's condition would be a classic prior restraint.

Alexander v. United States, 509 U.S. 544, 550 (1993)(upholding RICO forfeiture order in obscenity case precisely because it did not prohibit the defendant from engaging in any expressive activities in the future and did not require the defendant to obtain prior approval to engage in expressive activities); see Vance v. Universal Amusement Co., 445 U.S. 308 (1980)(per curiam)(striking down a Texas statute that permitted judges, on a showing that obscene films had been exhibited in the past, to enjoin future exhibition of films not yet determined to be obscene); Near v. Minnesota, 283 U.S. 697 (1931)(reversing judgment that enjoined defendant, who had been found to have published malicious, scandalous and defamatory matter, from publishing such matter in the future on the ground that the injunction was an unconstitutional prior restraint on speech).

As the Ninth Circuit has explicitly recognized, limited restraints on expressive activity of criminal defendants have been sustained where the underlying crime was committed in the course of what would otherwise be protected expressive activity and where the condition is reasonably related to the purposes of probation. United States v. Terrigno, supra, 838 F.2d at 374. So, for example, restrictive conditions have been upheld in cases where the defendant engaged in violent or unlawful conduct during the course of a political protest or an abortion demonstration. The rationale in such cases is that because the restriction on expression is so closely related to the original criminal offense, it can be justified under the reasonable relationship test. Even in this context, however, restrictions on speech may be no broader than necessary. See, e.g., People v. Arvanites, 17 Cal. App. 3d 1052 (2d Dist. 1971)(striking down parole condition to the extent that it barred picketing and pamphleteering, holding that "a condition of probation which prohibits conduct which is not only legal, but protected by the Constitution and not related to the crime of which defendant has been convicted, nor to future criminality, cannot stand."); In re Mannino, 14 Cal. App. 3d 953, 957, 964 (1st Dist. 1971)(striking down parole condition that prohibited the defendant from "contribut[ing] any newspaper articles or other writings to any publications" and barred the defendant from "speaking for any organization" or at any public function).

Outside the demonstration/protest context, courts have been extremely reluctant to impose restrictions on a defendant's expressive activities. See, e.g., United States v. Krzyske, 836 F.2d 1013 (6^th Cir.), cert. denied, 488 U.S. 832 (1988)(striking down district court's order conditioning bail on defendants' agreement "to restrain from communicating with anyone other than his attorney regarding his beliefs about income taxes during the appeal" on the ground that the condition was an unconstitutional prior restraint); Porth v. Templar, 453 F.2d 330, 334 (10^th Cir. 1971)(striking down parole condition to the extent it prohibited the defendant from expressing his views on the validity or constitutionality of federal income tax laws explaining that "[t]o muzzle the [defendant] to this extent is on its face a violation of the First Amendment freedom of expression.").

Here, as the Court knows, Mr. Mitnick did not commit a speech-related offense. As this Court has consistently made clear, Mr. Mitnick's illegal conduct involved "hacking" and the sentencing hearings reflect this Court's understandable commitment to ensuring that Mr. Mitnick refrain from doing so again. 6/27/97 Tr. at 9. To that end, the Court instructed that Mr. Mitnick would not be permitted access to computers and could not be employed where computers are located. Transcript of Proceedings in United States v. Mitnick, Nos. CR 96-506 & CR 96-881 MRP, August 9, 1999 at 24. The condition that Mr. Mitnick refrain from acting as a "consultant or advisor to individuals or groups engaged in computer-related activity" should, we submit, be read in that light. Surely, Mr. Mitnick can be prohibited from teaching others how to hack, but the condition should not be so broadly read as to prohibit him from speaking or writing on any topic related to computers.

As the foregoing demonstrates, the Probation Office's sweeping interpretation of Your Honor's Order cannot be reconciled with well-established case law. In addition, however, it is also flatly inconsistent with this Court's prior rulings in this matter, with the prosecution's stated understanding of the scope of this Court's Order and with the Probation Office's own prior interpretation of the conditions of supervised release.

The Court will recall that during the course of sentencing hearings in this case, the prosecution specifically requested that Mr. Mitnick be barred from attending conferences or meetings devoted to a discussion of computer hacking and telecommunications fraud, a request far narrower than the restriction now envisioned by the Probation Office. This Court flatly rejected the request. Transcript of Proceedings in United States v. Mitnick, No. CR 95-603 MRP, June 23, 1997 at 9-10. Thus the Probation Office's decision, reflected in its letter of April 12, 2000, to bar the defendant from participating in lectures and conferences is flatly inconsistent with previously expressed views of this Court.

As the Court will also recall, one of the arguments advanced by the United States Attorney's Office in support of its argument that Mr. Mitnick should be ordered to pay a substantial amount in victim restitution was the prosecutor's observation that Mr. Mitnick would undoubtedly be free to work as a reporter, journalist or commentator on computer-related issues after his release from prison and, as such, would have significant means at his disposal for restitution. See Transcript of Proceedings in United States v. Mitnick, Nos. CR 96-506 and 96-881 MRP, July 12, 1999 at 27-28; see id. at 45. Thus, the prosecutors were also quite clear in their understanding that the conditions of supervised release could not be read so as to preclude Mr. Mitnick from working as a commentator on consumer computer magazines as the Probation Office has since concluded.

Finally, the fact that the Probation Office itself has previously permitted – indeed, encouraged – Mr. Mitnick to write and speak freely on a variety of topics since his release from prison is also testament to the fact that the conditions imposed by Your Honor cannot be interpreted to impose the prior restraint now envisioned by the Probation Office.

For the foregoing reasons, we respectfully submit that this Court should clarify the conditions of Mr. Mitnick's supervised release to permit him to accept the assignment to write for Contentville and to freely engage in other expressive endeavors.