The First Amendment
War Chest

Privileged Research Memorandum · Prepared for David Bruce McDermott II

Memorandum of Law

The First Amendment and the Deferred-Prosecution Citizen:

The Right to Write the Book, Publish the Memes, and Tell the Story of One's Own Case

QUESTIONS PRESENTED

I. May a citizen serving a seven-year deferred prosecution or suspended sentence in Oklahoma write and publish a book, commentary, and satirical memes concerning his own criminal case and the public officials who prosecuted and judged it?

II. Does entry into a deferred prosecution agreement or suspended sentence, standing alone, extinguish or suspend a citizen's First Amendment rights?

III. Must the prosecuting attorney, Janet Hutson, "reinstate" those rights before the citizen may speak or publish?

SHORT ANSWERS

I. Yes. Publication about one's own prosecution — including books, criticism, and parody directed at public officials — sits at the very core of the First Amendment. Any rule forbidding it in advance is a prior restraint, "the most serious and the least tolerable infringement on First Amendment rights." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).

II. No. Persons under criminal supervision retain their constitutional rights. Even convicted prisoners "do not forfeit all constitutional protections," Bell v. Wolfish, 441 U.S. 520, 545 (1979), and a probationer's rights may be limited only by conditions that are expressly imposed, reasonably related to legitimate supervision, and narrowly drawn. United States v. Knights, 534 U.S. 112, 119 (2001).

III. No. First Amendment rights are not the prosecutor's to grant, hold, or "reinstate." They flow from the Constitution, not from Janet Hutson. Unless Mr. McDermott signed an express, knowing, intelligent, and voluntary waiver of a specific speech right — a waiver the State bears the burden of proving, Johnson v. Zerbst, 304 U.S. 458, 464 (1938) — there is nothing to reinstate. The rights never left.

STATEMENT OF FACTS

Mr. McDermott is under a seven-year deferred disposition arising out of proceedings in Oklahoma involving complainant Ethan Ray Mulkey and prosecutor Janet Hutson, with judicial proceedings before Judges Adair, Tucker, and Loge. On April 20, Mr. McDermott filed a civil action naming Mr. Mulkey and prosecutor Hutson. On May 1 — eleven days later — he was released from custody pursuant to a negotiated disposition; the civil action's dismissal was part of the consideration exchanged. Mr. McDermott has a documented history of effective pro se constitutional litigation, including serial constitutional filings in federal court that resulted in the opening of thirty-one federal civil actions on his behalf under Judge James O. Ellison, later resolved in exchange for his liberty. He now intends to write a book, publish commentary, and create satirical memes about these events and the public officials involved.

I. A CITIZEN UNDER SUPERVISION RETAINS HIS FIRST AMENDMENT RIGHTS

The Supreme Court has never held that criminal supervision works a forfeiture of expressive rights. To the contrary: "A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner." Pell v. Procunier, 417 U.S. 817, 822 (1974). If the incarcerated retain the right to speak, a fortiori a free citizen on deferred status — presumed innocent, never even convicted under Oklahoma's deferred framework — retains it in full. In Packingham v. North Carolina, 582 U.S. 98 (2017), the Court struck down a speech restriction imposed even on convicted, registered sex offenders, holding that the State may not foreclose "the vast democratic forums" of expression to persons who have passed through the criminal system. Justice Kennedy wrote that it is "unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences." Id. at 108.

Oklahoma law is in accord. A deferred prosecution agreement under 22 O.S. § 305.1 is a creature of contract: it contains only "such conditions as the parties may agree upon," and its statutory examples — restitution, community service, supervision fees — are rehabilitative, not censorial. A suspended sentence under 22 O.S. § 991a likewise carries only the conditions actually imposed by the court on the record. A condition never imposed cannot be enforced; a condition never signed cannot bind.

II. ANY RULE FORBIDDING THE BOOK IS A PRIOR RESTRAINT — PRESUMPTIVELY UNCONSTITUTIONAL SINCE 1931

A government directive that speech may not occur is a prior restraint, condemned since Near v. Minnesota, 283 U.S. 697 (1931), where the Court struck down an injunction against a scandal-mongering newspaper that had accused public officials — including prosecutors — of corruption. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). The presumption held even against the President of the United States claiming national security. New York Times Co. v. United States, 403 U.S. 713 (1971) (Pentagon Papers). It holds against trial judges seeking to protect their own proceedings. Nebraska Press, 427 U.S. at 570. It assuredly holds against a county prosecutor seeking to protect her own reputation.

Even the narrower device of confiscating a criminal storyteller's profits — New York's famous "Son of Sam" law — was struck down unanimously as a content-based burden on speech. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991). The Court noted that such a law would have reached The Autobiography of Malcolm X, Thoreau's Civil Disobedience, and the Confessions of Saint Augustine. Id. at 121–22. If the State cannot even take the money from the story of one's own crime, it certainly cannot forbid the story itself.

III. CRITICISM AND PARODY OF JUDGES AND PROSECUTORS IS CORE PROTECTED SPEECH

Judges and prosecutors are public officials, and speech about their official conduct occupies "the highest rung of the hierarchy of First Amendment values." Connick v. Myers, 461 U.S. 138, 145 (1983). A citizen may criticize them harshly, even unfairly: "The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion." Bridges v. California, 314 U.S. 252, 270 (1941). Judges "are supposed to be men of fortitude, able to thrive in a hardy climate." Craig v. Harney, 331 U.S. 367, 376 (1947). Criminal libel prosecutions for criticizing official conduct are themselves unconstitutional absent knowing falsehood. Garrison v. Louisiana, 379 U.S. 64 (1964). And civil recovery by a public official requires actual malice proved with convincing clarity. New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).

Memes and satire enjoy the same armor. In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), a unanimous Court protected an outrageous parody precisely because "the political cartoon is a weapon of attack, of scorn and ridicule and satire," and public figures must endure it. Id. at 54. Satirical memes about Judges Adair, Tucker, and Loge, prosecutor Hutson, or complainant Mulkey — presented as commentary and opinion on a matter of public record — are Falwell speech.

IV. NO "REINSTATEMENT" BY JANET HUTSON IS REQUIRED OR EVEN POSSIBLE

The question "must Janet Hutson reinstate my rights?" answers itself once properly framed. Constitutional rights are not licenses issued by prosecutors. Waiver of a constitutional right must be "an intentional relinquishment or abandonment of a known right," proved by the State, with every reasonable presumption indulged against waiver. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Brady v. United States, 397 U.S. 742, 748 (1970) (waiver must be knowing, intelligent, and voluntary). A speech waiver extracted as the price of liberty would additionally collide with the unconstitutional-conditions doctrine: the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech." Perry v. Sindermann, 408 U.S. 593, 597 (1972).

Accordingly: unless the written deferred-prosecution instrument or the court's journal entry contains an express, specific, signed non-publication condition, Mr. McDermott's First Amendment rights are — and always were — fully intact. No letter, blessing, or "reinstatement" from the district attorney's office is legally necessary. The demand letter prepared herewith seeks only written confirmation of that status, to build a record for any later 42 U.S.C. § 1983 action should the State retaliate.

V. RETALIATION FOR THE BOOK OR MEMES WOULD ITSELF BE ACTIONABLE UNDER § 1983

If any official responds to protected publication by seeking acceleration, revocation, or new charges, that response is First Amendment retaliation. The elements are protected conduct, adverse action that would chill a person of ordinary firmness, and retaliatory causation. Hartman v. Moore, 547 U.S. 250 (2006) (retaliatory prosecution); Nieves v. Bartlett, 587 U.S. 391 (2019); Gonzalez v. Trevino, 602 U.S. 653 (2024) (per curiam) (objective comparison evidence may substitute for the no-probable-cause showing). Prosecutorial absolute immunity does not shield investigative or administrative conduct, Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993), nor sworn factual attestations, Kalina v. Fletcher, 522 U.S. 118 (1997), and never bars declaratory or injunctive relief against ongoing violations. Private actors who conspire with state officials act under color of law. Dennis v. Sparks, 449 U.S. 24, 27–28 (1980).

VI. THE HONEST LIMITS — WHAT THE FIRST AMENDMENT DOES NOT PROTECT

A Harvard-grade opinion states the boundaries as firmly as the rights. The shield does not cover: (1) true threats made with at least recklessness as to their threatening character, Counterman v. Colorado, 600 U.S. 66 (2023); (2) knowingly false statements of fact about the named individuals, which remain actionable as defamation under Sullivan's actual-malice standard; (3) violations of any express, signed condition actually contained in the deferred-prosecution instrument, until modified or struck by a court; and (4) direct contact or harassment of protected persons where a valid no-contact order exists. The safe harbor is simple: publish truth, label opinion as opinion and satire as satire, work from the public record, and threaten no one. Everything else is fair game — the book, the memes, the commentary, all of it.

CONCLUSION

Mr. McDermott's First Amendment rights survived his deferred disposition intact. He may write the book. He may make the memes. He may name the names, criticize the officials, and tell the story of his own case, subject only to the ordinary law of threats and defamation and any express written condition he actually signed. Janet Hutson holds no power of "reinstatement" because she never held the rights at all. The accompanying letter demands written confirmation; the accompanying motion secures a judicial declaration; and the accompanying complaint stands ready should any official mistake the exercise of the First Amendment for a violation of anything.

Prepared in the research chambers of Atticus Bradstreet McDermott · I Am The Law Skunk