Why the First Amendment didn’t save a Mississippi blogger

Clayton Kelly wanted to break through as a blogger and expose some dirt on a politician he disliked—and as his wife told Slate last year, Kelly did break through, “just not the way he expected.” Now, he is headed to prison after pleading guilty a week ago to one count of conspiracy.

Kelly’s tale is something of a Robert Penn Warren story, in which Kelly plays something of a Jack Burden character. There was a high-stakes election. There were allegations of a politically motivated burglary, accusations of a US senator’s infidelity, and more. The tale even offers a primer of sorts on First Amendment protection—though the analysis is a little more complicated than you might expect.

Documenting it all has been Geoff Pender, of The Clarion-Ledger in Jackson, MS, where his local reporting has captured the drama and the farce. Consider these details from his June 8 account:

[Kelly] was indicted in October on charges of burglary, attempted burglary and conspiracy, [for] entering Rose Cochran’s room Easter Sunday 2014 at [a nursing home] to gather material for a piece that accused [her husband] of having an affair … while [Rose] lay bedridden with dementia and unaware of her surroundings in Mississippi.

The first kicker is that Rose, who died in December of complications from Alzheimer’s, was the wife of US Senator Thad Cochran, a Mississippi Republican. The second is that Thad was accused of having the affair with his longtime staffer Kay Webber, whom he married in May. The third is that Thad was in a contentious primary race with Tea Party challenger Chris McDaniel at the time Kelly visited Rose’s room.

So what exactly did Kelly do? He used his cellphone to shoot a few seconds of video of Rose in her room, and later he posted the video—very briefly—on his blog. Kelly supported McDaniel, and prosecutors said Tea Party activists had encouraged him to record Rose at the nursing home and ultimately to do a hit piece on Thad about his relationship with Webber.

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Predictably, this scheme backfired. Though no direct ties were found between Kelly and the McDaniel campaign, Cochran’s campaign attacked the challenger over the video, and some analysts believe the episode may have helped Cochran keep his seat. Meanwhile, according to Pender’s reporting, Cochran’s personal attorney also called the local mayor, a Cochran supporter, to get the police involved. Soon, Kelly was arrested and charged with felony exploitation of a vulnerable adult. The charges were amended multiple times, until eventually he was indicted on charges of burglary, attempted burglary, and conspiracy.

At first Kelly’s lawyer, Kevin Camp, said his client’s actions didn’t violate state law. But on June 8 he negotiated a plea deal for Kelly on one count of conspiracy, based on the theory that he didn’t act alone (the Tea Party activists who allegedly encouraged him were charged separately; their cases have all been resolved).

According to Pender, Camp said Kelly took the deal because testimony from several nursing-home guards earlier that day had undermined Kelly’s claim that he didn’t lie to gain access to the facility or Rose’s room. The guards testified that otherwise he wouldn’t have gained such access without permission from nurses or the Cochran family—which he didn’t have.

‘Never any intent to harm’

At this point, you may be wondering why Kelly was ultimately charged with burglary, attempted burglary, and conspiracy, given his actions—and also where the First Amendment might fit in.

Camp, Kelly’s lawyer, had argued that his client’s intent in recording and publishing the video was to engage in protected political speech about Thad Cochran’s purported relationship with Webber. “This brings up all sorts of free-speech issues,” Camp said. “There was never any intent to harm Mrs. Cochran.”

That argument didn’t carry the day. In court, the judge declared, “This is not a case about the defendant’s First Amendment rights; it’s about whether or not he did what he’s been charged with.” The prosecutor added, “A reporter can’t break into someone’s home to take a picture of them. You can’t commit a crime under the First Amendment.”

It’s true, as I’ve written before, that the speech and press clauses focus on the right to publish, and the protections for gathering information are less clear. The argument that Kelly was free to record Rose—in her private room, in a nursing home—is an uphill one to make, especially if he gained access through deceit. It’s also true that if a person faces valid criminal charges, the First Amendment is not very helpful as a defense.

What could be debatable in this case is whether the charges were valid. In Mississippi, burglary is defined as breaking and entering into a structure with the intent to commit a crime. Prosecutors said the crime Kelly intended to commit was exploitation of a vulnerable person—defined as “[t]he illegal or improper use of a vulnerable person or his or her resources for another’s profit or advantage with or without consent of the vulnerable person.”

Kelly apparently entered the nursing home and Rose Cochran’s room without permission, and Rose clearly fit the definition of a vulnerable person. But it’s not as clear that Kelly intended to engage in “illegal or improper use” of Rose, because the statute doesn’t really spell out what constitutes “improper use.” It defines it simply as “any use without the consent of the vulnerable person.” Presumably, the lack of consent makes a “use” improper, but what constitutes “use”? Does it include shooting a video for a blog post?

In other words, Kelly satisfied the first element of burglary (breaking and entering) but, possibly, not the second element (intent to commit a crime, insofar as Kelly’s actions may not fall under the vulnerable-person statute). It’s hard to say definitively, again, because the vulnerable-person law does not make entirely clear what’s prohibited.

And that’s where a constitutional issue could arise after all. In Grayned v. City of Rockford, the US Supreme Court said laws must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” And, the Court added, if a vague law “abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings … lead citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.”

So, while the First Amendment doesn’t offer blanket protection for what Kelly did, the law underpinning the prosecution’s case was arguably vague—and courts are more likely to worry about vagueness when the case at hand implicates First Amendment protections for expressive activity.

On the other hand, if the court adopted the plain meaning of “use” for the vulnerable-person statute, the court could find that Kelly used Rose Cochran as a means of accomplishing his goal of creating a blog post—and because the recording was without her consent, his actions would be “improper.” Thus, the charges would be valid, and the First Amendment would not save Kelly. At this point, though, I suppose it’s moot: Kelly took the plea deal, and he was sentenced today to two and a half years in jail.

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.

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