Ochoa on Unabomber Papers

By Eric Goldman

There was some press today about the government’s efforts to resell papers of Ted Kaczynski (a/k/a the Unabomber). While the government makes those papers available in unmodified form to researchers, the proposal was to publicly sell some of the papers in sanitized form and turn the proceeds over to the victims’ families. This has raised some complex issues about copyright, ownership of papers, the First Amendment, moral rights (including the government’s right to modify the documents) and victim restitution. My colleague Tyler Ochoa has cut through some of the rhetoric to tell the legal story. He writes:

The factual background of this case is reported in U.S. v. Kaczynski, 306 F. Supp. 2d 952 (E.D. Cal. 2004), vacated and remanded, 416 F.3d 971 (9th Cir. 2005), on remand 446 F. Supp. 2d 1146 (E.D. Cal. 2006). It is the latter order that is being appealed by Kaczynski.

Kaczynski entered into a plea bargain, which included the following clause:

“The defendant agrees that he shall disgorge any monies paid in whole or in part to him or on his behalf, in return for writings, interviews, or other information disclosed by the defendant, including but not limited to access to the defendant, photographs or drawings of or by the defendant or any other type of artifact or memorabilia to the United States Probation Office for restitution or other distribution to the victims of the Unabom[b] events.”

His sentence included an order of restitution to the victims of some $15 million. Under the Victim and Witness Protection Act, entry of judgment created a lien against his property until the restitution debt is satisfied.

After the trial, Kaczynski moved for return of his property, including his writings (but not including bomb-making materials and other contraband). The district court denied the motion, holding that the judgment lien gave the government a claim of ownership in the property. [It also denied his alternative motion that he be given photocopies of the documents.] On appeal, the Ninth Circuit vacated the order and remanded for further proceedings. It noted that the government’s position that the property was of negligible value (because it should be valued without regard to his celebrity) was inconsistent with its position that the judgment lien gave it a possessory interest. It held that the government had a right to possession only if the property was necessary to satisfy the judgment lien. If the property had value, it had to be disposed of in a way that would maximize compensation to the victims; if it did not, it had to be returned. It remanded the case for the U.S. Attorney to come up with a restitution plan that met those requirements.

On remand, “the government proposed auctioning all of the writings except those containing ‘diagrams and ‘recipes’ for making bombs.’ Further, the government, on behalf of the Named Victims, requested that certain information be redacted from the writings prior to the auction, specifically, the names of ‘all victims, regardless of whether they filed a restitution claim or not,’ ‘the names of their families,’ all ‘recognizable descriptions of the victims and their injuries,’ and the names of ‘intended victims.’ ” Kaczynski “asserted his original writings should be returned to him because an auction of the originals would violate the First Amendment. Kaczynski alternatively asserted that if the auction included his original writings, the First Amendment prohibits redactions of the originals, and he should receive unredacted copies.”

On remand, the district court approved the restitution plan. It addressed the First Amendment issue as follows:

“Kaczynski contends the sale of his original documents would violate the First Amendment, even though he already has or will receive copies of all of his writings, because an ‘original is always better than a copy’ and has ‘intrinsic historical and scholarly value that photocopies lack.’ However, Kaczynski has not demonstrated what protected speech is contained in the originals that is not contained in the copies, or how a sale of the originals, when he possesses copies, implicates the First Amendment….

Kaczynski alternatively argues that if the original writings are included in the auction, the First Amendment prohibits the government from redacting any information from the documents. Again, Kaczynski fails to explain how alterations of the original physical documents, when he possesses exact copies, impairs his ability to communicate his ideas or otherwise violates the First Amendment.”

Footnote 12 states:

“Although the government states it has provided Kaczynski with copies of all of his writings, Kaczynski asserts that he is missing some pages and that others are illegible. The government shall provide Kaczynski, though his designated recipient, with any page Kaczynski has not already received in readable form.”

Footnote 13 states:

“Kaczynski also argues ‘regardless of whether the government may sell Kaczynski’s original papers, the restitution lien does not take away [his] literary rights to his papers.’ The July 31 Plan only addresses the sale of the physical documents.”

The district court’s opinion makes it clear that the case involves possession and redaction of the tangible originals of the writings, and not the copyrights per se. The purchaser of the tangible originals will not possess the right to reproduce them; that remains with Kaczynski. So long as the redaction does not deprive Kaczynski of his ability to reproduce the documents, I fail to see how the redaction violates the First Amendment. It does not prevent Kaczynski from speaking or from publishing the unredacted writings (although the proceeds would have to go the victims under the plea bargain, which was voluntary, thus not implicating the Son of Sam decision). The purchaser knows the documents are redacted, so s/he is not mislead; and if the purchaser makes the documents available to the public for inspection, I would think a disclaimer noting they had been redacted would be sufficient to avoid any argument of compelled speech.

On the other hand, the order may not satisfy the Ninth Circuit’s parameters. The reason the government has a possessory interest is the restitution lien, which is purely an economic interest; but the reason for redacting any reference to the victims is a privacy interest. An interesting question is whether the judgment lien gives the victims (who requested the redaction) the right to order modification or destruction of his physical property, when doing so will not further the purpose of the government’s claim of possession, which is to accomplish restitution. In other words, should we consider only the victims’ economic interest, or should we consider their privacy and emotional interests as well? I’m not sure the judgment lien is broad enough to take the latter into account, especially since Kaczynski could still publish the unredacted versions if he wanted to, which would be much more violative of the privacy interest than simply selling the tangible original. With regard to other (non-contraband) physical property, the government can’t simply destroy the property; it has to either sell it or return it to Kaczynski. I don’t see why the same shouldn’t be true of the tangible original manuscripts. In other words, the modification may be improper under the statutory scheme, without regard to the First Amendment.

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