Creating Content Isn’t A Crime

Creating Content Isn’t A Crime. Today, the U.S. Court of Appeals for the Tenth Circuit overturned David Lesh’s criminal conviction. Lesh, a client of the New Civil Liberties Alliance (NCLA), faced accusations of violating a U.S. Forest Service (USFS) regulation. The court found the USFS regulation banning unauthorized “work activity or service” on USFS lands to be impermissibly vague. This ruling means Lesh couldn’t have known that taking photos on USFS land and posting them on Instagram was punishable.

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Following Supreme Court precedent, the Tenth Circuit decided that Lesh was not deprived of his Sixth Amendment right to a jury trial. The petty offense exception applied. However, two judges suggested that this exception might violate the Constitution and called for its reconsideration.

In April 2020, Lesh, an accomplished skier and founder of outdoor gear company Virtika, posted photos on Instagram. The images showed a snowmobiler jumping at Colorado’s Keystone Ski Resort, which closed due to COVID-19. The resort is on USFS-administered land. Lesh’s post did not mention or promote Virtika. Despite this, a federal magistrate judge convicted him of operating a snowmobile off-route and unauthorized “work activity or service” on USFS lands. Lesh received a sentence of six months’ probation, 160 hours of community service, and a $10,000 fine without a jury trial. Today, the court upheld only the off-route snowmobiling conviction.

In a powerful concurrence, Judge Tymkovich, joined by Judge Rossman, urged the Supreme Court to revisit the “petty offense exception” to the jury trial right. They argued this exception conflicts with the Sixth Amendment’s guarantee of a jury trial in criminal cases. The concurrence highlights the inconsistency of excluding petty offenses from the jury trial guarantee. This applies even if, like in Lesh’s case, the possible term of imprisonment exceeds six months due to multiple charges.

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The NCLA released statements following the decision:

“We are pleased the Court found the term ‘work activity’ impermissibly vague as applied to Mr. Lesh. Like many, Lesh is an entrepreneur who promotes himself online via social media. The government’s theory would have criminalized this and the social media activity of thousands who post photos on public lands. Kara Rollins, Litigation Counsel for NCLA, confirmed that creating personal content for personal social media pages is not a crime.

“Because Mr. Lesh angered Denver-area law enforcement, the government was determined to convict him. To achieve this, the prosecution stretched the term ‘work activity’ to include taking and posting a photo on a personal social media account. The courts below accepted this interpretation. Today, the court upheld only the off-route snowmobiling conviction. We are thrilled that the Tenth Circuit vindicated Mr. Lesh’s constitutional rights today. This upholds the rights of all Americans who might post a photo on federal land,” said Jenin Younes, Litigation Counsel, NCLA.

Creating Content Isn’t A Crime

“Kudos to the Tenth Circuit for striking down the absurd application of the Forest Service’s regulation by prosecutors. They also recognized that the government likely infringed Lesh’s Sixth Amendment jury-trial right. Although Supreme Court precedent prevented the panel from overturning Lesh’s conviction on this basis, two judges have set the stage for the U.S. Supreme Court to reconsider the petty offense exception,” said Mark Chenoweth, President, NCLA.

For more information, visit the case page.

ABOUT NCLA

The NCLA is a nonpartisan, nonprofit civil rights group founded by legal scholar Philip Hamburger. It aims to protect constitutional freedoms from violations by the Administrative State. The NCLA’s public-interest litigation and pro bono advocacy strive to curb the unlawful power of state and federal agencies and foster a civil liberties movement to restore Americans’ fundamental rights.

Creating Content Isn’t A Crime