Last week, an Alpine smoke shop called the Purple Zone was raided by the DEA as part of a national effort to curb sales of synthetic drugs, like “spice” and “bath salts.” The search warrant was issued, and “Purple Zone owners Ilana Lipson [sic], and her mother, Rosa Lipsen, are currently under state indictment for multiple first-degree felony manufacture, deliver, or possession of a controlled substance following four previous raids beginning in November 2012,” according to the Big Bend Sentinel.
But the story is not so cut and dry. Two different accounts of what happened during the raid have emerged, and it’s causing a bit of a stir in the community. It was Illana’s sister Arielle who showed up as the agents were forcibly entering the smoke shop. Illana told the Big Bend Sentinel:
[Arielle] was having a conversation with a female agent, and trying to give the agents the lock code,” Ilana Lipsen claimed. “She was trying to tell them there was no key, but a code. There were too many officers and about half of them were doing nothing, then this one agent charged at her, threw her, kicked her legs out from under her, and when she was falling, her leg brushed up against his leg. That’s when he said ‘you’re trying to beat a federal agent’ and shoved the butt of his rifle into her neck.
Here is her photograph of the injury she alleges she sustained as a result of the incident. And Arielle now stands charged with attacking a federal officer.
As for what prompted the raid, the Lipsen sisters claim they were unfairly targeted. As Ilana told the paper:
“They link people with internet search history. I own a hookah lounge, so I’m always looking at new products, and I breed, train, and show Arabian horses, so I’m always looking at them online. I do business with China. All my e-cigarette merchandise is bought directly from Chinese distributors,” she said. “It’s the last reach from the DEA in Brewster to get something from nothing. There were 30-plus officers at my shop, and they seized my personal and business computers, my camera, my cell phone, and my registered guns. They also seized packages of kratom, which is a legal herbal stimulant. They absolutely did not find anything illicit or any contraband.”
(The FBI told the Big Bend Sentinel it will not be commenting on an investigation into the incident involving the DEA officer Arielle accused of using excessive force.)
But it’s what happened next in the Lipsen sisters’ case that is bizarre: As part of Ilana Lipsen’s bond conditions, set forth by the U.S. District Court’s Pretrial Services, in addition to the $10,000 bond to guarantee that she appear in court, she was also required to carry out some very unusual conditions (the document is pictured above):
The defendant shall: Will request Tom Cochran retract his blog on Facebook. Will provide a letter of apology to both local newspapers in Alpine, TX, advising DEA had a legitimate reason to execute a warrant at her business. Will advise news paper a warrant was not executed at her business because she was Jewish, owned Arabian horses, is of Turkish decent or because she visited Chinese websites. Will advise media (KWest 9 news) that her sister, Arielle Lipsen, was not beaten by agents carrying/using a M16 rifle, and her sister instigated/assaulted agents.
Cochran is a friend of the Lipsen’s, and he’s the person who took and shared the photograph of Arielle Lipsen’s neck bruise. Ilana Lipsen also told the Big Bend Sentinel, “They claimed that I had ties with Hezbollah and Syria, which is ridiculous. …How can I, a Jewish woman who supports the State of Israel, contribute to those groups or states?”
That’s the context for the state’s condition, but it’s hardly an explanation for why these retractions were required as part of her bond.
Lipsen did write the letter she was required to write. You can read it at the Brewster County Sheriff’s Office’s Facebook page, where they posted a photo of it. She does make every retraction required of her. And it’s entirely possible that the statements in her letter are true, but to be forced to make that statement as a condition of her bond is, to say the least, very unusual.
And it’s possibly unconstitutional. As Eugene Volokh, who writes about free speech law for the Washington Post points out:
[I]t’s an order compelling speech, on threat of imprisonment, which would itself normally be a First Amendment violation; but on top of that, it was issued without a trial, and thus without any final factual findings supporting its validity.
I’m aware that, once someone is convicted, courts have considerable latitude to impose speech restrictions as a condition of parole or probation, and might even be able to impose speech compulsions. But that is after someone’s guilt has been proven beyond a reasonable doubt in a criminal trial. The defendant here hasn’t been convicted of anything; she continues to be presumed innocent until proven guilty.
And courts have held (quite rightly, I think) that the government has quite limited powers to restrict defendants’ speech as a condition of bail. The proper purposes of bail conditions are to assure the defendant’s presence at trial, to prevent the defendant from attacking witnesses or victims, and to prevent the defendant from committing further while released; any speech restrictions must therefore be tied to those purposes.
Here, the conditions seem to be tied simply to correcting what the magistrate judge thinks are factual errors. But a court can’t just compel someone who hasn’t been convicted of any crime to recant her accusations against government officials. If the statements are found to be false at a trial, that might lead to damages liability or criminal punishment — or potentially even an injunction. If Ms. Lipsen is found to be guilty of some other crime, it’s possible that some speech restrictions could be imposed on her as a condition of any probation or parole (though I’m not sure that these restrictions properly can be). But absent any such trial and verdict, the bail condition seems to be a clear violation of the First Amendment.