[October 18, 2008]
[received via email from lawyer Bruce Leichty]
NO REMEDY FOR JAILED BRITISH "HERETICS"
Los Angeles, California--(10/16/2008)--Two jailed writers who
were convicted in Britain of Internet hate speech on a U.S.-based
website will be forced to remain in special asylum proceedings with
no right to a bail hearing, a Los Angeles Immigration Court judge
ruled October 14, 2008.
"That is a very bad blow to their hopes of freedom in the near
future, and indeed to all asylum seekers and defenders of free
speech in the United States," said Paul Ballard from the United
Kingdom, coordinator of a legal defense fund for the pair known as
the "Heretical Two" (based on the website www.heretical.com
The pair, Simon Sheppard and Stephen Whittle, have since July
14 been in the custody of the U.S. Department of Homeland Security
in a Santa Ana, California contract detention facility, after
disembarking that same date from a plane at Los Angeles
International Airport, where they immediately asked for political
asylum. They fled Britain after being convicted July 11 in a Leeds
courtroom of inciting racial hatred for publishing writings such as
"Don't Be Sheeple" and "The Holohoax," including some published on
Sheppard's website operated from a server in Torrance, California.
Ballard noted that British law since 1986 allows for criminal
conviction for speech if the subject speech is "likely to result"
in the "stirring up" of racial hatred. A conviction requires no
proof of violence or intent. During the trial competing expert
witnesses were called to testify as to whether Jews, an offended
group, were a "religious" or "racial" group, since British law does
not criminalize stirring up religious hatred.
The Heretical Two, who consider themselves political satirists
and nonviolent gadflies, are the first persons to be prosecuted in
Britain for Internet speech made on a Web server in another
country, says Ballard. They were charged under Britain's Public
Order Act of 1986 and are subjected to penalties enhanced by the
British Prevention of Terrorism Act of 2000.
Since that time, Britain has arrested another man, Frederick
Toben, an Australian, for speech denying "the Holocaust," based on
a German arrest warrant issued for Toben. Toben was taken into
custody October during a layover at Heathrow Airport.
"These two alarming cases are related in that both of them are
attempts by the British Crown to criminalize speech regardless of
where it takes place and whether it is legal in the place where it
was made," noted Bruce Leichty, a San Diego County attorney who was
retained in September to represent the Heretical Two.
The October 14 Los Angeles Immigration Court decision in the
Sheppard and Whittle cases leaves the two in need of the remedy of
habeas corpus (literally: we have the body), a process which
federal legislators in the U.S. have made more difficult and costly
for immigrants in recent years, according to Leichty.
Leichty said the actions of the U.S. government to date have
added insult to injury. "Here are two British individuals who
published speech that was legally protected in the United States,
for which they were criminally prosecuted in Britain," said
Leichty, "and now the case has taken an even more Kafkaesque turn
since the one country that should be protecting them from
imprisonment in Britain has instead thrown them into U.S. jail for an indefinite period of time, based only on the fact that they
requested political asylum.
"Refugees are protected by international treaty; no country
should treat political refugees like these two have been treated,
particularly where they enter the host country legally."
Leichty notes that Homeland Security admitted in its
Immigration Court brief that the two were admitted to the United
States under the U.S. Visa Waiver Program, and that until they made
their request for political asylum at Los Angeles Airport DHS had
no reason to suspect or detain them. Once the two told their story
to airport officers, however, DHS attempted to revoke its decision
admitting them to the U.S. and to declare the two "inadmissible" on
the ground that they entered with the intent to stay in the U.S. as
immigrants, which Leichty says is both preposterous on the facts of
the case and in any event not within the powers of airport
"It is well established that an asylum claimant does not give
up his nonimmigrant status simply by telling his host country that
he needs the protection of political asylum."
The special type of proceeding that the two were put into,
called an "asylum-only proceeding" where immigration judges do not
have the authority to release the alien from detention, is used in
connection with the Visa Waiver program only for asylum applicants
who are not already admitted into the country, or those who have
overstayed their authorized periods of stay--neither of which
applied to Sheppard and Whittle when they sought asylum. But
Leichty says that Immigration Judge Rose Peters turned a deaf ear
to these points and ruled that DHS officers had "discretion" to
issue the notices that put the two into the special proceedings.
Leichty said that, although the recent and more notorious
arrest of Frederick Toben in London involves a German extradition
request, he is not aware of any request by the U.K. for the
extradition of Sheppard and Whittle, and in any case the United
States typically does not extradite persons who are convicted of
crimes which are not crimes in the U.S.
"It is clear that obsessive security apparatuses in two
different countries have now run amok, by respectively making
criminals out of dissidents and by locking them up even though they
are not criminals. One does not have to share the views or style
of the Heretical Two to appreciate the threat posed by this type of
case to individual rights and liberties."
"The laws under which Sheppard and Whittle were prosecuted
could just as easily be used to subject nonconformist American
publishers to criminal penalties in Britain."
Sheppard has described his website as a mixture of
"blasphemies, heresies, and scientific and general interest
material" established to promote his ideas on subjects such as
politics, race and gender relations. He holds an Honors bachelor's
of science degree in mathematics from the University of Sussex and
published two medical scientific papers prior to becoming a
publisher and web developer. Whittle is a First Class Honors B.A.
graduate in languages and linguistic science from the University of
York, and has written numerous books.
Sheppard says he and Whittle were prosecuted based on the
charge that their writings could be viewed by persons in England
and Wales, and not even on any evidence that the writings had
actually been viewed by anyone other than a police officer who
downloaded material for the purpose of bringing charges.
"Both men state that they were living peaceably and civilly in
Britain until the police disrupted their lives by raiding their
flats and seizing their papers and property," says Leichty. The
British press has repeatedly referred to them as the "race hate
"There are people who want to criminalize `hate speech' in the
U.S., too," noted Leichty. "But as officers of the court,
attorneys should remind people that even speech perceived as
hateful deserves protection. One man's `hate' may be another man's
passion or critique, or even another man's creed. The United
States should lead the way in showing disapproval of those nations
who have sought to restrict the nonviolent expression of opinion
"The Heretical Two are no more criminal than many of our
American forebears who fled repression to settle this country--and
no doubt they may say repugnant things just like other blogging
Americans. Ignore or despise them or ridicule them if you wish,
dialogue with them if you dare, but don't imprison them."
In choosing Los Angeles as their destination, the pair had
hoped to visit with other dissidents at the Institute for
Historical Review, Costa Mesa, one of whom had been designated by
the defendants as an expert witness in their British case on the
historicity of various standard Holocaust accounts, said Leichty.
Ballard says the U.S. imprisonment of the two, and the legal
costs associated with their defense, caught British nationalist
activists by surprise. Asylum claimants are on their own in the
U.S. unless they can afford attorneys. "This is such an important
case with such far-reaching implications that my colleagues and I
could not simply let Simon and Stephen languish in detention
without counsel," Ballard said.
Ballard is spearheading the Legal Defence Fund that has been
set up in the U.K., which he says is accepting contributions in all
currencies addressed as follows: Croydon Preservation Society, P.
O. Box 301, Carshalton, Surrey, SM5 4QW, United Kingdom.
"The need for American participation in legal defense costs is
critical," he urged. "American interests are at stake here, too."
In a letter from prison, Sheppard wrote: "Detention is
stressful and disorienting. [We] appear before the Immigration
Court shackled hand and foot....[We] have no access to the legal
material and evidence which is stored in the baggage [we] carried
on arrival....[We undertook our action to seek asylum] as a matter
of principle, as a political gesture to protest an iniquitous
British law which inhibits free speech and the democratic process."
To win political asylum in the U.S., claimants must prove that
they have a well-founded fear of persecution in their homeland, on
one of several grounds including political opinion. While U.S.
courts have frequently stated that "prosecution" does not equate to
"persecution," there are cases where confinement and prosecution
under repressive laws have been held to constitute persecution,
Leichty is best known previously for representing Ernst
Zundel, an internationally known Holocaust revisionist and
publisher who in 2003 was arrested in Tennessee, taken away from
his U.S. citizen wife, and deported to Canada on the pretext that
he had missed an INS (Immigration and Naturalization Service)
appointment. After Leichty was hired to succeed Zundel's first
Tennessee immigration lawyer, Zundel won the right to a hearing in
Knoxville federal court, but his initial bid to overturn his
deportation on habeas corpus grounds was rejected in an unpublished
decision of a federal court of appeals in Cincinnati, and Leichty
says he and Mrs. Zundel are now prosecuting Zundel's remaining
claims in Knoxville.
Law Offices of Bruce Leichty
625-A 3rd St.
Clovis, CA 93612
(559) 322-2425 (fax)
220 W. Grand Ave.
Escondido, CA 92025
(760) 294-9071 (fax)