Publishing Guidebook Discussing Illegal Activity in Yellowstone Isn't Criminal Aiding & Abetting

Eugene Volokh 

In U.S. v. Garland, decided last week by Magistrate Judge Mark L. Carman (D. Wyo.), defendant—a commercial guide in Yellowstone—was prosecuted for, among other things, publishing a guidebook, podcast, and social media pages called "Explore Yellowstone Like a Local":

The Government alleges that Defendant aided and abetted a violation of a closure through his actions and comments made to Mr. Johnson [a visitor to Yellowstone] on or about July 30, 2020…. [T]o be guilty as an aider and abettor, it is necessary that Defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, and that he seek by his action to make it succeed."

…Mr. Johnson undoubtably committed crimes within YNP. There was evidence, and admissions, that he intentionally violated closures and cliff jumped while within YNP knowing such was illegal. The question, is what did Defendant do to willfully associate himself with the criminal venture and which of Defendant's actions sought to make the venture successful?

The only action Defendant arguably took was that of speaking and publishing. Defendant published a guidebook, used social media and created a podcast that all advocated for law violation. Defendant discusses cliff jumping in YNP in both his podcast and his guidebook.

..Admittedly, the Government's position is not unreasonable and Defendant's conduct is not praise worthy. Defendant does provide some details, both in his podcast and guidebook, where cliffs can be found and that cliff jumping is illegal. He strongly advocates, multiple times, that visitors should cliff jump despite being a violation of park rules and encourages them to do so when Park Rangers are not in the area.

However, at the most basic level, all Defendant has done is provide information as to where cliffs are and why he believes people should ignore rules prohibiting jumping off those cliffs. Defendant has not provided a detailed account on how to commit a crime. The cliffs are well known within Yellowstone National Park and located at a swimming location where swimming is approved by the Park. He has not given a time of day when one would be most likely to avoid Park Rangers. He has not actively helped listeners or readers avoid detection by keeping lookout or by organizing coconspirators to do so. Without specificity raising Defendant's words beyond that of abstract advocacy of lawlessness, the Court cannot find him guilty of Count 10.

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Read the entire post and ask yourself the following question: If the defendant was a rancher who published a guide book on how to trap wolves and produced a podcast titled How to Trap a Wolf Like a Trapper,  would  the same legal  theories apply to the rancher? In other words does the rancher enjoy the same freedom of speech rights as the  commercial guide?