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I'm going to loop in @zeke5213a because this response acts as one for his comments as well, as I think there's some conflation going on here. Before we get going I want to point out that the original topic of this discussion was relative base rates for certain behaviors, and someone's assertion that opposing ICE was always wrong, to which I responded that that was simply a value judgment and that from a neutral perspective opposing ICE was only wrong if those doing the opposing were breaking the law. From there the discussion seems to have morphed into whether the protestors in Minnesota are breaking any particular laws. To that point, I will concede that there are probably some protestors who are unambiguously breaking the law, and you can count those into whatever base rate discussion you want, but I get the impression that nobody really cares about that anymore and is more concerned about the prospect that the protestors in Minneapolis are, en masse, committing any crimes. And I want to make it clear right now that that makes for a more interesting discussion than whatever stemmed from the half-forgotten base rate comment I tossed off last night before dinner, and I'll be addressing that question and I could care less about base rates at this point, and I get the impression that neither of you care much about that either.
With that out of the way, there's really a two-step analysis involved in all of these questions. The first step is to ask whether the speech in question violates a particular law. The second step is that, if the answer is yes, to determine if the enforcement of that law is precluded by the First Amendment. The conflation I'm referring to comes from the specific conduct of the ICE protestors, which seems to have two components:
That being said, I tried to focus on the First Amendment question, because laws vary across jurisdictions but the Constitution is a showstopper. The general rule here is that speech is protected unless it falls into an exception, and I couldn't find any applicable exceptions. What it seems like you're bringing up is the criminal speech exception, which is an exception for speech that is integral to criminal conduct. When discussing criminal conduct, it makes sense to think of various tiers of culpability. I'll use the bank robbery example because it's the most clear-cut:
Principle: This is what most people think of, i.e., you're the one walking into the bank and pointing a gun at the teller. Pretty much everyone understands that this creates liability for robbery or whatever the relevant crime is.
Accessory: The liability here is the same as it is for the principal, and it includes anyone who was involved in the crime prior to or during its commission. In your robbery example, the lookout is aware that the crime is going on and is actively participating in it. If you're guilty at this level, you're charged with the underlying crime, in this case robbery. Though liability is the same, some people may think it isn't or shouldn't be because the defendant played a limited role in the crime.
Accessory After the Fact: This is its own thing and isn't charged as part of the underlying crime but as a stand-alone offense. This liability applies when someone who wasn't involved in the planning or commission of the crime but has knowledge of it provides one of those involved assistance in avoiding capture. If the bank robbery lookout went to his friend's house and told him what happened, and the friend let him lie low at his house for a couple days and arranged for a ride out of town, the brother could be charged as an accessory after the fact, but not with robbery. there are three reasons why this wouldn't apply to the ICE protestors. I'll say as a preliminary that this isn't actually charged very often (it's most often used as leverage to get cooperation) and my cursory Google research revealed very little. What I can tell you from experience is that I've never heard of anyone being charged with this based on a communication alone. Sometimes the communication is part of the evidence, but those are cases where substantial other assistance was also provided. I certainly haven't seen any indication that the activity would override First Amendment concerns, though it is certainly possible. The second problem with applying it to ICE protestors is that it requires that the defendant have knowledge that a crime was committed and attempt to assist a specific person accused of that crime. I can almost guarantee you that very few of the ICE protestors even know the names of the targets let alone know what crimes they may have committed, which brings me to my third point. Much has been made about deportation actions being civil and not criminal, and while this is usually irrelevant to the conversation, this is one of the times when it matters, because, even if the first two concerns weren't a problem in a specific case, you can't be an accessory after the fact to a non-crime. If it were US Marshals trying to execute a warrant for illegal entry, then it would be different, but they don't do that because then they would have to give the guy a lawyer and be subject to heightened procedural safeguards. There are simply too many complexities here to make this something worth pursuing.
Obstruction/Impeding: This is the level in which the authorities don't have to prove that an underlying crime was committed, just that the legal process was interrupted in an impermissible way. We can forget about any liability at the Federal level, because the statutes simply don't cover it. Charges relating to impeding Federal employees (the once ICE agents most often cite when trying to get protestors to back off) explicitly only include forcible actions. The Obstruction of Justice statute includes an enumerated list of specific activities, none of which the protestors are known to engage in. At the state level, the statute looks more promising, as it doesn't specifically contain any language that would preclude any of the protestors' activities, but the case law interprets the statute as only applying to physical obstruction outside of very specific circumstances that are unlikely to apply. The state courts also specifically rejected the idea that warning someone of their impending arrest was prohibited under the statute, ruling that the obstruction had to be directed at law enforcement and not third parties.
Are you sure of this? I feel like you and I are talking past each other. I see protestors do things like trying to box in ICE vehicles with their cars, get up in officer's faces while blowing whistles in their ears, use their bodies to try to block ICE vehicles, chase ICE agents around, put their bodies between ICE agents and where they want to go. They often stop short of throwing the first punch but not always. Is this all covered under the first amendment?
What about the gang lookout example? Is the kid texting to warn his fellow ganstas when he sees a police officer walk on their turf committing any crimes? If he knows that a crime is likely being committed, but might not know the specifics of who and what because that's not his job?
Also, thank you for responding, I do appreciate that you are taking a different side of things.
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