Last week, the Second Circuit tossed a federal conspiracy case against the meme publisher Douglass Mackey, a development many are rightly hailing as an important free speech victory. Soon, that same court will likely confront another conspiracy case with similar First Amendment stakes.
Nicole Daedone and Rachel Cherwitz were previously executives at OneTaste, Inc., a California company that promoted the practice of “orgasmic meditation.” As I pointed out elsewhere, despite the sex-laced, R-rated allegations in the indictment, Daedone and Cherwitz were not prosecuted for trafficking or sexually assaulting former OneTaste employees. The two women were charged with forced labor conspiracy under the Victims of Trafficking and Violence Protection Act.
At trial, the prosecution conceded that Daedone and Cherwitz did not physically imprison anyone, and even that “every single one of th[e] [alleged] victims did leave” the company. What, exactly, were Daedone and Cherwitz’s crimes? According to prosecutors, they “used aspects of [Daedone’s] teachings to force OneTaste employees to provide labor in combination with many, many other tactics.” One of those was the threat of employees being “spiritually ruined” should they stray from Daedone’s teachings. Working together, Daedone and Cherwitz “compelled” their female employees “through serious harm to believe that they had no reasonable choice not to work.” The jury convicted Daedone and Cherwitz, and now they each face up to 20 years in prison.
During their closing arguments, prosecutors assured the jury that Daedone and Cherwitz were not on trial for engaging in “just high school tactics, a case of being kicked out of the group chat, name calling, a demanding boss, cross-fit.” According to prosecutors, the victims testified to a “coercive reality that caused them significant trauma.”
The government’s desire to downsize the prosecution’s scope is understandable. But it is difficult to discern the limiting principle. These questions must be asked: When it comes to forced labor conspiracy, on what basis are prosecutions for “high school tactics” off the table? Daedone and Cherwitz’s convictions are under statute that, on its face, criminalizes a swath of conduct arising out of ordinary relationships, including church–parishioner, employer–employee, and parent–child relationships. What prevents prosecutors from charging conduct within these relationships as federal crimes? What does that mean for institutions like the family, the church, and other organizations which many have long viewed as a critical bulwark against an overreaching state?
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Perhaps the limiting principle is financial. The prosecution asserted that Daedone made a “$12 million gain on the backs of these victims’ labor.” Any abusive employer could be said to enjoy similar ill-gotten gains by victimizing employees. Is the amount of the gain the distinguishing factor? How are these lines drawn? Who decides?
When the Supreme Court took up an involuntary servitude prosecution in 1988, it read the statute at issue in that case narrowly to avoid these problems. The government’s “interpretation” of the law in that case, the Court observed, “would criminalize a broad range of day-to-day activity,” including “a parent who coerced an adult son or daughter into working in the family business by threatening withdrawal of affection” or “a religious leader who obtains personal services by means of religious indoctrination.” At the same time, this would “delegate to prosecutors and juries the inherently legislative task of determining what type of coercive activities are so morally reprehensible that they should be punished as crimes.”
The world the court conjured is here. As in Mackey’s case, federal prosecutors pursued an aggressive conspiracy theory of criminal liability against Daedone and Cherwitz. Whatever you think of Mackey’s tweets or OneTaste’s teachings, none of this is good for faith, family, or the First Amendment.
