Why Massachusetts is Overreaching in Accusing the Boston Two of a "Bomb Scare" for their Cartoon Publicity Stunt

By SCOTT MOSS
Wednesday, Feb. 07, 2007

Last week, according to the Massachusetts Attorney General's press release, two individuals intentionally created a mass bomb scare that disrupted a huge portion of the Boston metropolitan area -- part of a broader nationwide campaign of similar actions in other major cities. Fortunately, the Attorney General tells us, state law makes such shenanigans a crime, and the perpetrators were promptly captured and charged with a felony. It's just like an episode of Law & Order.

In reality, there just isn't any support for the idea that this was an intentional bomb scare. The overzealous cries of national security remind one less of the straight-shooting cops and prosecutors of Law & Order than the hapless military intelligence tyrant Colonel Flagg, MASH's parody of paranoid law enforcement.

The (Absurd) Facts We Know

Setting aside the controversy about what, if any, crime was committed, here's what we do know. Two doofus twenty-somethings were paid a few hundred dollars to post, in public places, electronic light boards of a cartoon character waving his middle finger. They were hired by a marketing firm working for Turner Broadcasting's Cartoon Network to promote the late-night animated show Aqua Teen Hunger Force.

The marketing wizards behind this brainstorm had others do the same thing in ten other major cities (New York, Los Angeles, Chicago, Atlanta, Seattle, Portland, Austin, San Francisco, and Philadelphia), where nobody mistook them for bombs. After Turner was alerted that the light boards had been mistaken for bombs in Boston, it told authorities that this was just a marketing campaign.

In the meantime, though, law enforcement had brought the Boston metropolitan area to a standstill while working to "disarm" the light boards, which had batteries and wires behind the silly images, leading authorities to suspect a possible mass urban bombing campaign.

Massachusetts officials did not take kindly to learning that they had virtually shut down a city because of lit-up cartoons. Bolstered by stern words from the Mayor of Boston, a member of Congress, and the Governor, the State Attorney General announced felony charges against the two individuals. The problem is that the law the Massachusetts prosecutors cite simply doesn't cover the stunt that occurred.

The Law The Prosecutors Are Invoking: A Prohibition on Intentional Bomb Hoaxes

The criminal law the prosecutors cite declares it a felony to "place any hoax device ... with the intent to cause anxiety, unrest, fear or personal discomfort to any person." It defines "hoax device" as one "that would cause a person reasonably to believe [it] is an infernal machine[,] ... [a] device for endangering life or doing unusual damage to property, or both, by fire or explosion...."

In other words, the prosecutors have to prove beyond a reasonable doubt that the defendants -- two guys hired by marketers for a cartoon show -- actually intended to create a bomb scare by putting up those light boards. The prosecutors also have to prove that reasonable people would've thought the light boards were bombs.

The Farfetched Arguments Prosecutors Will Have to Make

I don't see how the prosecutors can possibly meet their burden of proof. Both the "intent" and "reasonableness" requirements of the criminal law are a problem, with "intent" looking especially insurmountable.

First, have prosecutors even thought hard about the requirement of intent? Would any judge or juror believe that the Cartoon Network's marketing folks intended to create a bomb scare, and (prosecutors have to prove both) that the two men knew they were creating a bomb scare by posting cartoony light boards around town? Would any judge or juror believe that the Boston men decided to take the job because they truly wanted to create a bomb scare -- not for the money or any (however misguided) humor value? Can a prosecutor even argue any of this with a straight face?

Second, let's consider the requirement that a reasonable person must have believed the devices to be bombs. Does Al Qaeda regularly place bombs with strikingly visible (in this case, lit up) silly characters in highly visible places? With a record of ten other cities ignoring these light boards, Boston's reaction looks like hysteria -- perhaps understandable hysteria, in this age of terrorism, but can prosecutors prove beyond a reasonable doubt that the "It's a bomb!" reaction was "reasonable"? This reasonableness element isn't as flat-out impossible to prove as intent, but it looks like an uphill battle, at least, for the prosecution.

This is the sort of case that a judge may well dismiss summarily, without even awaiting a jury's verdict, on the grounds that the evidence is insufficient to convince a jury of guilt beyond a reasonable doubt.

Irresponsibility Isn't a Crime -- and Neither is Embarrassing a Bureaucrat

At worst, this may be a case of irresponsibility.

But "irresponsible" isn't "illegal," at least in the centuries since we threw off the notion that you can get jailed simply for ticking off the king or the local duke. You can get prosecuted only for violating a law that's actually on the books, not just for doing something bad or upsetting to local magnates. Maybe these two will go to doofus Purgatory for this, but they didn't even come close to committing the felony for which their state is prosecuting them.

Here's one thing the two men are guilty of doing: They ticked off a lot of important public officials who now are deeply embarrassed that they virtually shut down a major city after mistaking lit-up cartoons for the Second Coming of Osama. Those officials' upset is understandable, but fortunately, in this day and age, embarrassing even the most well-intentioned mayor doesn't justify felony charges -- at least not in America.

Place Your Bet on Dropped Charges and a Trivial Plea Bargain

Of course, state attorney generals aren't ignorant; they must know these charges are as leaky as Scooter Libby. The authorities already reached a settlement with Turner Broadcasting to pay millions to cover costs that resulted from the light boards being mistaken for bombs. That remedy seems about right: Even if nobody committed a crime, and even if Boston overreacted, this marketing campaign cost a lot of folks and their government significant economic loss and inconvenience.

But the two twenty-somethings hired to tape things up around town are unlikely to have meaningful cash to offer as a settlement. If it wants to act against the two, the government has to take some other pound of flesh -- hence this gross overreaching of a felony prosecution.

My bet is that we will see a quick guilty plea to some exceedingly minor charge -- perhaps the underwhelming charge of "disorderly conduct," which the Attorney General already has thrown in along with the felony bomb scare charges. Procuring a plea to a minor offense is a common tactic of bad-egg prosecutors who bring legally dubious but politically necessary felony charges.

That sort of prosecutorial overreaching is exactly what happened to wrongly prosecuted Chinese-American physicist Wen Ho Lee.

In 1999, Lee was arrested and locked in pretrial solitary confinement for almost a year on serious national security charges -- leaking nuclear secrets to China. When the charges proved baseless, the government, rather than just admit error and free Lee, instead negotiated a plea of "guilty" on a trivial charge of not following proper procedures for handling sensitive information.

Wen Ho Lee and the Boston Two are victims of one of the darkest possibilities in our criminal justice system: prosecution as political persecution, when politicians and police need a scapegoat for their own failures.

Fortunately, the vast majority of prosecutors in our legal system are too professional for such un-American gambits. Still, every good chicken coop ends up with a few bad eggs -- and the rotten-egg stink coming from Boston right now isn't just from the harbor.


Scott A. Moss is a law professor who teaches constitutional law and employment law, among other courses, at Marquette University Law School.