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The Washington Post ran a befuddled story yesterday headlined, “
How the FBI’s visit to a Muslim woman became a right-wing rallying cry.” I’m not sure WaPo knew how to report it, the story never actually answers that “how” question. The sub-headline added foggy context: “A viral video of FBI agents looking into pro-Palestinian Facebook posts reflects the muddled politics and social media swirl of 2024.” Only WaPo is confused.
It’s not clear whether this muslim woman’s FBI encounter was the first example, but several other similar videos popped up on social media around the same time yesterday from people claiming the FBI visited them to talk about their social media posts. WaPo’s article only focused on the Muslim woman.
The article tried but failed to generate a controversy. WaPo was shocked that some right-wing pundits stuck up for the Muslim lady. Apparently that jarred the WaPo’s worldview; it either thinks Muslims should be a secure liberal constituency happy to help censorship, or it thinks that right-wingers can’t be apolitical when defending Constitutional rights.
Second, in a reflexive spasm of journalistic malpractice, the WaPo’s story unaccountably produces no hint of the woman’s Facebook posts so that its readers might get any idea of what provoked the official visit. From what I could tell, she
really doesn’t like Israel or Jewish people and tends to use angry, provocative, and violent rhetoric, and she often wishes bad things on a whole raft of folks including the American military. Ugly but perfectly legal.
Why the WaPo omitted that fact is unclear from the story.
Third, and most importantly, we have
no idea what actually led to the FBI’s visit. It could be related to a legitimate terrorist investigation; maybe they are really looking at one of the lady’s similarly-angry friends. The feds might have other information justifying the visit. We just don’t know. Despite the bad apples at the FBI, and despite the pitiful explanation the agents offered, I would still lean toward giving them the benefit of the doubt.
Slightly.
Inarguably, the FBI has been used to intimidate lawful speech. I was invited to speak at the Moms for Liberty annual conference in Tampa a couple years back. Mainly so I could help prepare their national chapter leaders for what to do if the FBI ever called on them. It was right after DOJ head Merrick Garland identified Moms as a domestic threat of some kind, and
the FBI in fact called or visited several (volunteer) chapter leaders for the thoughtcrime of criticizing woke school board members.
Obviously domestic terrorists.
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In case the FBI is coming after anti-vaxxers next, here is a “field guide” to interacting with the FBI about your social media posts.
The basic rule is:
don’t talk to the FBI at all. You aren’t legally required to talk to them without legal process (like a subpoena) or without your lawyer. So don’t talk to the FBI. This can be trickier than you think. One way you can accidentally get in trouble happens when you don’t even know you’re talking to an FBI agent. The second way — lying to a federal official — happens
during your conversation with the agent.
Both ways are easy to avoid. Don’t ever talk to them unless legally required —
and you will know when that is — and don’t ever talk to them without a lawyer. I’ll tell you how to handle both types of encounters.
![Military helmet :military_helmet: 🪖](https://cdn.jsdelivr.net/joypixels/assets/6.6/png/unicode/64/1fa96.png)
Sometimes you might not know you are talking to an agent. An ‘act in furtherance’ is the
entrapment path. Unless you are making specific threats against people, the things you
say are protected by the First Amendment and can’t be criminalized. But an undercover FBI agent could try to convince you to
do something, however small, “in furtherance” of a criminal act. It doesn’t take much.
Then they can combine that act, however small, with your words, which are used as evidence of your criminal intent.
It’s not hard. Just
don’t get involved in anything shady. Especially not if the idea comes from some new online contact. And not even if the act, whatever it is, however satisfying it might feel, seems distant from any actual crime. You don’t have to
do the actual crime to be convicted of being an ‘accessory’ or a ‘co-conspirator.’
There doesn’t even have to be a crime! Or any real co-conspirators. Even if the rest of the ‘conspiracy’ group is all undercover feds, and even if no crime ever actually happens, or even gets close to happening, they can still charge you for the ‘attempt.’
An attempt carries the same punishment as actually doing the crime.
For example, patriotic anti-lockdown trucker Barry Croft, 47, got 19 years for co-conspiring in the Whitmer incident. Largely he was convicted for his
words — “discussions” — about using explosions to divert federal officials during a potential kidnapping. Although the ‘discussions’ might arguably have been First Amendment protected, but Barry
traveled to Michigan to scout out the scene. (Plus he wore a funny tricorner hat they
really hated.) Regardless that the federal agents talked Barry into going to Michigan, they combined Barry’s
words (talking about using explosives) with his
act (traveling to Michigan) to establish the crime of attempted fednapping.
Most people reading this probably won’t have any trouble avoiding this category of potential risk. Just don’t do stupid stuff and don’t get involved with stupid people.
![Military helmet :military_helmet: 🪖](https://cdn.jsdelivr.net/joypixels/assets/6.6/png/unicode/64/1fa96.png)
Second, don’t talk to feds
especially when they identify themselves, like by unexpectedly visiting you or calling you on the phone for a chat. This second and more substantial risk of liability for your words arises from
lying to a federal official. United States Code, Title 18, Section 1001, drops the hammer:
(a) Whoever, within the jurisdiction of the executive, legislative, or judicial branch of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up … a material fact; (or)
(2) makes any materially false, fictitious, or fraudulent statement or representation;
shall be fined under this title, imprisoned (up to) 5 years or, if (it) involves … domestic terrorism, imprisoned (up to) 8 years, or both.
Since the FBI is within the executive branch, making any “fictitious or fraudulent statement or representation” to the FBI — even if not under oath — is a
felony punishable with up to five years in federal prison (up to eight if they can say it “involves” domestic terrorism, like criticizing genderbending school board members).
Technically, section 1001 includes a “materiality” component — the lie must be somehow
meaningful, not just about whether that dress makes your wife look fat — “material” is a super squishy legal term, and you don’t want to rely on the inability of creative FBI lawyers to convince a judge something you said was somehow “material.”
Not to mention
the process is the punishment anyway. Even if you win your case, you still had to endure it. And unlike you, the FBI gets its lawyers
for free.
But you argue,
Jeff, I would never lie to the FBI in the first place. Of course not. Not on purpose. But why take an unnecessary risk of
accidentally ‘lying’? Your memory isn’t perfect. And like everybody, you probably believe lots of stuff that isn’t true. And some things you think are just your
opinion — like saying the 2020 elections were stolen or Nancy Pelosi is a lizardarian — could be whipsawed against you as “false facts.”
You can’t beat them.
Don’t even try. FBI agents are trained law enforcement professionals with lots of practice from interrogating people every single day.
Take conservative fashion stylist Martha Stewart as an example. Martha spent five months tastefully decorating a federal prison cell for
lying to investigators under 18 USC § 1001,
not for “insider trading.” She was heavily fined and went to jail for stupid stuff she
said:
Martha’s mistake was thinking she was smarter than them.
![Military helmet :military_helmet: 🪖](https://cdn.jsdelivr.net/joypixels/assets/6.6/png/unicode/64/1fa96.png)
Step one. When the FBI shows up at the door and introduces themselves, you should start recording.
Do not record them secretly — that’s a felony in many states (including Florida). Be friendly. Ask them to wait a sec if you need to go get your phone. Once the recording is on, you can ask a few quick questions.
This is optional. But to get some useful information for the recording, ask their names, ask for their business cards, ask what office they’re from, and ask for their supervisor’s name. Then ask, “gentlemen, what’s this all about?”
Then you should politely and firmly say “I would love to talk to you boys about this, but I want to do it with my lawyer. I’ll have my lawyer call your office and set something up.” Then say goodbye and close the door.
You won’t need to call and follow up. They don’t want to talk to your lawyer anyway. Also, there’s no reason to demand to see their identification, which can be faked by bad actors anyway. If they are pushy, or won’t go away, call your local sheriff and say there are armed men standing around in your yard. Then start microwaving some popcorn.
Here’s a quick summary of the advice:
- Record the interaction.
- Refuse to speak to them without a lawyer.
- Refuse to let them in the house (unless they have a warrant).
- Don’t go outside of the house and keep the door closed.
It’s that simple, although you’ll probably feel nerve-wracked the whole time. Odds are that, if the FBI was really there
just to talk to you about your social media posts, the case ends right there.
Still, I’d suggest that if it does happen, contact a lawyer to have on standby, just in case they decide to follow up.
By avoiding talking, you’ll avoid the trap of helping the FBI turn your perfectly legal words into a crime.
A couple final thoughts. Many, if not most FBI agents are decent, hardworking professionals who want to do a good job. Even the ones at your door may have been sent there by another office’s request (like the infamous DC field office). Don’t assume the ones at your door are bad guys.
Finally, the obligatory disclosure:
this is not legal advice and I’m not your lawyer.
C&C primer on how to (not) talk to the FBI about your social media posts; Israel-Iran “shadow war” leans out of the shadows; Trump pays massive bond; surprising jab guidance change in Australia; more.
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