The majority determined on first impression that the law used to convict Christopher Clark Arthur, arrested after an FBI informant sought his advice in fortifying a property against federal agents, does not violate constitutionally protected speech. The law prohibits spreading information on how to use "explosives, destructive devices and weapons of mass destruction" only if the disseminator knows the information-seeker intends to "use it for, or in furtherance of, a federal crime of violence," the majority noted.
"In other words, Congress narrowed § 842(p)(2)(B)'s potentially broad scope by including a mens rea requirement of knowledge within it," wrote U.S. Circuit Judge G. Steven Agee for the majority.
The FBI began investigating Arthur after his instruction manuals on how to build bombs were found in the home of Joshua Blessed, a Virginia truck driver and former customer of Arthur's self-defense company who in 2020 shot at upstate New York police and rammed their vehicles with his semi-truck before he was killed by law enforcement.
At Blessed's home, the FBI found 14 live pipe bombs "that were identical to those described in Arthur's manuals, as well as six manuals that he wrote," the majority explained.
An FBI informant then approached Arthur online through Arthur's company, Tackleberry Solutions, after watching a video called "How to Repel a Trained Military Force," requesting a free PDF through a link in that video, the court explained.
Eventually, the informant known as "Buckshot" was invited to an in-person paid training where he told Arthur he wanted to repel agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives from entering his house, the majority said.
Over the course of three hours, Arthur gave the informant a plan that involved grenades, attack dogs, electric fences and improvised explosive devices — claiming to have one IED on his own porch, according to the majority.
Arthur was convicted under a federal law prohibiting such instruction to someone hoping to do harm, and a terrorism enhancement was rightfully applied to his case, the court said.
According to the court, the constitutionality of the language in the law used to convict Arthur has only been addressed once before by circuit courts. In National Mobilization Committee to End War in Vietnam v. Foran
, the Seventh Circuit in 1969 considered "a statute with language akin" to that at issue in Arthur's case, Judge Agee wrote. That court rejected a challenge to the statute using similar reasoning, he said.In his dissent, Fourth Circuit Chief Judge Roger L. Gregory sided with Arthur, yet clarifying that it wasn't Arthur whom he ultimately hoped to protect.
"I have concerns about the wide range of speech encompassed by the statutory language as well as the novelty of criminalizing speech when the speaker lacked specific intent to commit a crime; I cannot agree with my colleagues that this statute should survive overbreadth analysis," he wrote.
While the majority deemed unpersuasive Arthur's examples of military instructors and physics teachers who might fear teaching lessons on explosives and explosions, Chief Judge Gregory disagreed.
"The law is hardly cabined to those who communicate bombmaking instructions; the statute prohibits discussion of anything pertaining in part to an explosive or destructive device," he wrote, noting that a gas can itself can explode under the right circumstances.
He also said the production of methane gas, which can be explosive if released into the air, "qualifies as 'pertaining ... in part to the manufacture ... of an explosive.'"
A university professor giving a lecture on kinetic energy could also technically be discussing something that pertains to "incendiary applications," Judge Gregory wrote.
"A statute that couples vague definitions with strict prohibitions leaves enormous discretion in the hands of the government to penalize speech," the judge said.
"Until today, this court has refrained from deciding whether a speaker's mere knowledge of a listener's criminal intent is sufficient to permit civil liability," he added.
Arthur's attorney, Andrew DeSimone, said he would be appealing the court's decision, seeking en banc review, but declined to comment further on the case.
Representatives for the government did not immediately respond to requests for comment on Wednesday.
Arthur was represented by Andrew DeSimone and G. Alan DuBois of the Office of the Federal Public Defender in Raleigh, North Carolina.
The government is represented by Joseph Patrick Minta of the U.S. Department of Justice, Sue J. Bai and Gavan W. Duffy Gideon in the DOJ's National Security Division, and Daniel P. Bubar and David A. Bragdon of the Office of the U.S. Attorney, Raleigh, North Carolina.
The case is United States v. Arthur, case number 24-4306, in the U.S. Court of Appeals for the Fourth Circuit.
--Editing by Philip Shea.
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