Appeals order in Jan. 6 'disinformation' case puts First Amendment in peril, defense attorney says

Former Jan. 6 probationer Daniel Goodwyn finished his one-year term of court supervision by censoring his own constitutionally protected speech for fear of being arrested for publishing so-called “disinformation” for which a federal court had ordered monitoring of his computers and internet communications, his attorney says.

Even though the U.S. Court of Appeals originally struck down the “disinformation” monitoring order in February, a district court reimposed it in June and refused the defendant’s emergency motion to stay the ruling pending appeal. Since then, the U.S. Court of Appeals has twice refused to intervene as the clock runs out on the case.

“This is lawfare, not justice,” defense attorney Carolyn Stewart told Blaze News minutes after the U.S. Court of Appeals for the District of Columbia Circuit refused her Aug. 28 motion for an injunction in the case.

“This is not the end, since tyrants in the DOJ and the D.C. judiciary are trying to kill the First Amendment and imprison political opponents for speech,” Stewart told Blaze News. “If Elon Musk can fight Brazil and the D.C. backstabbers, we can fight D.C.”

'The condition is being imposed as punishment and restraints on speech for holding viewpoints that disagree with the government.'

In a Sept. 3 per curiam order, circuit Judges Robert Wilkins, Neomi Rao, and Justin Walker denied the motion for an injunction, saying Goodwyn had not “satisfied his burden” to show why it was impracticable to seek relief from the district court.

Senior District Judge Reggie Walton, the author of the original and reinstated disinformation monitoring orders, refused all defense motions for reconsideration and for a stay pending appeal.

The Court of Appeals panel deferred action on federal prosecutors’ motion to dismiss the appeals case as moot because Goodwyn is no longer under court supervision.

On Aug. 6, the panel had refused the defense motion for an emergency stay of Judge Walton's monitoring order.

Despite Goodwyn’s scheduled Aug. 25 release from court supervision, Stewart filed for an injunction that said Goodwyn lost employment due to unconstitutional court monitoring of his speech and now faces having to remove government spyware from his devices or replace them at a cost of $10,000.

The government claims it never began the disinformation monitoring because of the pending appeal.

“Goodwyn errs in assuming that computer monitoring actually occurred,” Assistant U.S. Attorney Elizabeth Danello wrote in a court filing. “If he had filed this motion in the district court, the government would have established that the Probation Office in fact never installed any monitoring software because of Goodwyn’s appeal.”

Daniel Goodwyn at the U.S. Capitol on Jan. 6, 2021 (left), and at a Fourth of July celebration. Photos courtesy of Daniel Goodwyn

While the government denies having actually begun monitoring Goodwyn's devices, his lawyer says the government submitted specific information it could only have obtained "by accessing internal website posting data and Mr. Goodwyn's computer activity" in its argument for why he should be monitored.

Stewart said the court-ordered speech restrictions were put in place “without reasonable suspicion of any crime, despite there being no use of a computer or internet to commit any crime, and the condition is being imposed as punishment and restraints on speech for holding viewpoints that disagree with the government.”

Goodwyn’s Jan. 6 misdemeanor trespass case has emerged as a First Amendment harbinger that Stewart says if left unresolved by an appeals court could become a template to imprison people for speech the government does not like.

'I doubt that the vague and broad prohibition on spreading "disinformation" about January 6 would survive First Amendment scrutiny.'

“If this court denies the motion, the use of computer restrictions and monitoring as a punishment for protected speech and to chill viewpoints by not only Judge Walton but other judges in the lower court will spread like a virus,” Stewart wrote. “This is a matter of great public interest — making the matter not moot.”

Need to disinfect computers

Goodwyn has suffered substantial and irreparable harm because the Court of Appeals that struck down the disinformation monitoring in the first place refused to grant a stay while the new appeal was pending, she said.

“Since monitoring — a spying program — requires no physical on-site software installation, we do not know what was remotely installed and by who,” Stewart told Blaze News. “We have facts that show monitoring was conducted. Yet the government opposes transparency. I call that tyranny.”

The unusual case involves a running battle between Judge Walton and Goodwyn, 35, of San Francisco, who was convicted of one misdemeanor count of trespassing for his 36 seconds inside the U.S. Capitol on Jan. 6.

Judge Walton took umbrage at Goodwyn’s appearance on the March 14, 2023, episode of “Tucker Carlson Tonight” on Fox News. The judge claimed Goodwyn spread “disinformation” and “misinformation” about Jan. 6 during the broadcast and minimized his own role in the protests at the Capitol.

For those reasons, Judge Walton added a special condition to Goodwyn’s sentence in June 2023, directing U.S. Probation and Pretrial Services to monitor his computer and internet communications for so-called “disinformation” without defining the term, how it should apply to Jan. 6, or saying who would decide what was true or false.

Stewart filed a notice of appeal with the U.S. Court of Appeals for the District of Columbia Circuit on June 30, 2023. She filed a brief in the case in September 2023. On Feb. 1, 2024, the Court of Appeals vacated the “disinformation” monitoring order.

A three-judge panel wrote that Judge Walton “plainly erred” by not considering whether the computer monitoring “was ‘reasonably related’ to the relevant sentencing factors and involved ‘no greater deprivation of liberty than is reasonably necessary’ to achieve the purposes behind sentencing.”

'Goodwyn is likely to prevail on the merits and has shown an immediate irreparable injury.'

Shortly after the Court of Appeals sent the case back to Judge Walton for further proceedings, Walton ordered Goodwyn to “show cause” why the disinformation monitoring that had just been struck down should not be reinstated.

During a “show cause” hearing June 27, Judge Walton reinstated the monitoring provision, decreeing that he satisfied the objections raised by the Court of Appeals and refusing Stewart’s emergency motion for a stay of his order pending appeal.

Judge Gregory Katsas dissented in the Court of Appeals’ Aug. 6 refusal to grant Goodwyn a stay. The restriction of Goodwyn’s speech would not survive judicial scrutiny and Goodwyn is likely to prevail on appeal, Katsas wrote.

“Goodwyn appealed and moved for a stay. I would grant the motion because in my view Goodwyn is likely to prevail on the merits and has shown an immediate irreparable injury,” Katsas said in a two-page dissent.

The First Amendment to the U.S. Constitution “significantly limits the government’s ability to prohibit speech that is false,” Katsas wrote in his dissent. That includes advocating the use of force and speech couched as threats, he said.

Wouldn't survive scrutiny

“On this record, I doubt that the vague and broad prohibition on spreading ‘disinformation’ about January 6 would survive First Amendment scrutiny under these standards,” Katsas wrote, “which recognize that the ‘language of the political arena … is often vituperative, abusive, and inexact.’”

This legal factor supports Goodwyn regardless of his further claim that being monitored by the government for his speech would cause him to lose his job as a journalist, Katsas said.

“With the two most important stay considerations favoring Goodwyn and with no public interest in enforcing likely unlawful speech restrictions, I would grant the motion for a stay,” Katsas wrote.

Editor's note: We have updated the following statement to include the name of Justin Walker: 'In a Sept. 3 per curiam order, circuit Judges Robert Wilkins, Neomi Rao, and Justin Walker denied the motion for an injunction.' The original statement incorrectly listed Gregory Katsas instead.

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