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PaperclipPerfector  11mo ago (text post)   28354 thread views

Culture War Roundup for the week of May 29, 2023

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Update on Felony Charges for Tiki Torch Marchers

A month ago I mentioned the announcement that several people from the Charlottesville 2017 torch-light march were indicted on felony charges for "burning an object with the intent to intimidate." There was a lot of skepticism that this would stick given that the statute is being stretched quite far from its incarnation as an anti-cross burning law. @netstack wrote "For the record, I don’t expect the Charlottesville tiki-torchers to be convicted."

Last Thursday it was reported that a South Carolina man entered a guilty plea, the second one to do so. He was sentenced to five years in prison / four and a half suspended:

A South Carolina man has pleaded guilty to a charge in connection with a torch march that occurred at the University of Virginia in 2017.

Tyler Bradley Dykes entered a guilty plea to burning an object with the intent to intimidate on Thursday.

He was sentenced to five years in prison, with four and a half years of that suspended.

Dykes is the second person to plead guilty.

Earlier this month, Will Zachary Smith of Texas also pleaded guilty to a charge of burning an object with the intent to intimidate.

As part of his plea deal, another charge associated with the Unite the Right rally was dropped.

Smith is scheduled to be sentenced in August.

The significance of this is that it's now precedent for "intent to intimidate" as an avenue for outlawing hate speech, which has traditionally had first amendment protections. I noted that Ron DeSantis's hate speech law signed in Jerusalem also contained verbiage surrounding an intent to intimidate, allowing for protestors to be asked to leave or be arrested/charged if they demonstrate on a university campus for the purposes of "intimidation." There was skepticism that "intimidation" could be stretched so far- but here we are, and it's already happened.

Conservatives are quite capable of lawfare and they have a 6-3 Conservative Supreme Court majority. If 'intent to intimidate' rulings were shutting down conservative political rallies around the country they're quite capable of funding legal challenges and appealing their way to a court where they have a sympathetic majority.

The cynical view is that Conservative legal elites are completely fine with having their embarrassing white nationalist fringe suppressed and don't expect the statute in question to be applied broadly. The less cynical view is that this guy was charged because he was part of a group that surrounded some counter protestors and is alleged to have menaced them with the torch, which means he's being punished constitutionally for interpersonal intimidation and not political speech.

The cynical view is that Conservative legal elites are completely fine with having their embarrassing white nationalist fringe suppressed and don't expect the statute in question to be applied broadly.

Wanting certain ideas in Israel: The only acceptable idea, and opposing them is extremism.

Wanting the same ideas in the US: Embarrassing extremist.

Wanting certain ideas in Israel: The only acceptable idea, and opposing them is extremism.

Is George Soros an extremist anti-Israeli?

Soros, who is Jewish, echoed arguments that have fueled a passionate debate conducted largely in the rarefied world of academia, foreign policy think tanks and parts of the U.S. Jewish community.

“The pro-Israel lobby has been remarkably successful in suppressing criticism,” wrote Soros. Politicians challenge it at their peril and dissenters risk personal vilification, he said.

The truth is that while Michelle Goldberg types exist, for the most part Jewish progressives who oppose rightist white identitarianism in America also oppose rightist Jewish identitarianism in Israel. They may indulge discussion about an 'ancestral homeland', but they're not protesting against Israeli immigration law or for the removal of migrants in South Tel Aviv either. George Soros is the primary financier of a long legal campaign to limit the deportation of African migrants to Israel, is the primary backer of the Israeli Arab lobby etc. The ADL is torn between being a progressive organization and being a Zionist organization, its own (Jewish) staffers are now openly more and more anti-Zionist.

Is there some hypocrisy? Sure. That's not limited to Jews. Rightist ethnats often think whites should remain in South Africa even though it's actually the ancestral homeland of the Khoisan. They're unsympathetic to arguments that Australia should be ceded back to the natives there. Hypocrisy is hardly uncommon in politics. 'This for me but not for thee' is perennial. What's your point?

The cynical view is that Conservative legal elites are completely fine with having their embarrassing white nationalist fringe suppressed

I think it's a lot simpler than that.

Mainstream conservatives are, for the most part, sincere believers in the American Civic Religion and thus more inclined to see Id-Pol itself as the enemy rather than specific purveyors. As far as they are concerned these are not conservative allies being repressed, these are Marxists falling prey to the Marxist tendency to form circular firing squads and as such the popular sentiment on in right-wing spaces is in effect "Good Riddance".

Conservatives are quite capable of lawfare and they have a 6-3 Conservative Supreme Court majority. If 'intent to intimidate' rulings were shutting down conservative political rallies around the country they're quite capable of funding legal challenges and appealing their way to a court where they have a sympathetic majority.

And so several years later the Supreme Court gets the case. In the meantime conservative rallies continue to be chilled and conservative protestors not chilled are charged. And the Supreme Court gets the case and says "No, you can't do that". And the prosecutors then pick a slightly different law to use against conservative protestors and it starts all over again. Having only the Supreme Court isn't sufficient.

And of course all that requires the protestors get a lawyer willing to press the constitutional issue rather than just plead. Conservatives getting competent and zealous representation in Virginia has been a problem.

Leonard Leo is a conservative legal activist with a 1.3 billion dollar legal fund. If he thought Virginia anti-cross burning laws found constitutional in 2003 posed a risk to conservative political power these people would have the most zealous representation money can buy. I'm skeptical that a law that bans burning objects for the purpose of intimidation on public property has a broad chilling effect on Conservative political organizations since most political rallies don't involve burning objects.

My concern is that this would have empowered the more radical wing, Malcolm the Tenth and the like, who were already a major issue.

I believe that they understood this. They were facing a crisis of legitimacy at the time. The Soviets were also in on it; one of their major ideological attacks on the US was that they engaged in racial apartheid and the occasional lynching. As such...the Establishment feared that if they did not give King and the more moderate wing much of what they wanted, they would get an empowered Malcolm X and a lot of devastation. They might well win that battle, but it would have been quite costly. Especially with the very real chance that the Soviets would have backed black nationalist movements in America, if only to weaken their enemy.

It's specifically a statute against intimidating people with burning objects written for the KKK and now applied to this Tiki Torch guy. I'm not sure how broadly that will apply given most political speech doesn't involve burning objects.

The civil rights takeaway is bizarre. Pro-segregationist southern states set the laws MLK and others were tried under not a vague, establishment. The whole point of the protests was to be arrested in order to produce news footage of well dressed non-violent black people being dragged away from lunch counters. If you look at cases like the 'Friendship Nine' they had the option to pay a fine and get out or do hard labor in prison and they did the hard labor and stayed in prison. King's most famous piece of writing was produced in prison. Jailing civil rights protestors for the six months this guy is set to serve doesn't look like a silver bullet that would kill the movement.

I think you might be overstating the importance of the presence of burning objects. In Virginia v Black, the Court said that "Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so." 538 US at 360. I don’t see why the Constitution necessarily allows the state to criminalize me walking up to you and saying, "Leave town or die, kike" but prevents the criminalization of me and a bunch of my friends standing outside a synogogue and chanting, "all Jews get out of town or die."

That being said:

  1. In this particular case, the defendants apparently surrounded and threatened individual counter-protesters. They are not being charged simply for marching and chanting.

  2. The Court will be issuing an opinion in a case re true threats any day now, perhaps today, so that might provide more clarity.

It's specifically a statute against intimidating people with burning objects written for the KKK and now applied to this Tiki Torch guy. I'm not sure how broadly that will apply given most political speech doesn't involve burning objects.

Sure, but if it can be constitutionally applied in these circumstances, there's no particular reason to think a similar law without the burning requirement could not be applied to similar circumstances that don't include the burning. I.e., a law against protesting generally with an intent to intimidate. That seems a lot more likely now.

What is the similar law? There is specifically a Virginia statute against burning objects on public property with the intent to intimidate. Show me the law against 'protesting with an intent to intimidate".

Why? Let's suppose I hypothetically produced a jurisdiction with such a law. Would you find it invalid, and if so, on what grounds? Or is your position just that there is no chance of a slippery slope along these lines?

We have had categories of speech that are not protected by the first amendment for a long time, obscenity, threats, incitement to lawless action. It's easy to imagine how these narrow restrictions might be broadened and abused, yet we've had them for a long time without degenerating into a censorious dictatorship. The fact that you can imagine a hypothetical slippery slope isn't significant, the question is if we're actually sliding down it. I'm asking you for evidence that we are.

It's easy to imagine how these narrow restrictions might be broadened and abused, yet we've had them for a long time without degenerating into a censorious dictatorship

They were broadened and abused. During WW1 we sent people to prison for opposing the draft (Schenck v. United States). Then we slowly unbroadened them for a long time to the point where speech was more free. The evidence for a slippery slope is that we already slid down it and are still at this moment trying to claw our way back up.

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I would gesture at a novel and pointedly selective interpretation of the law in this case, but I already gather you don't find that persuasive.

If the powers that be had made it a felony with long jail time to sit in the wrong seat in the bus or patronize the wrong lunch counter, and the Feds had backed them up or at least just stood by, we'd still have Jim Crow.

and the Feds had backed them up

Too late - Brown vs Board was in 1954, the Montgomery bus boycott was 1956. The Alabama authorities knew that Rosa Parks would win a federal case, so they tried not to give her one. The non-poster-girl bus protesters (most famously unmarried teen mum Claudette Colvin and long-time activist Aurelia Browder) were not treated with kid gloves, did get their federal case, and won it (Browder v. Gayle).

The retellings of elders who lived under Jim Crow which I have heard are that actually enforcing these laws was a task that almost no one was enthusiastic about unless it was perceived as some kind of a threat to white women, and given what we know about long prison sentences(that is, they’re meaningless if you get away with the crime 99 times out of 100), it wouldn’t have done anything to make using the wrong bathroom a serious crime.

Long prison sentences are meaningless against career criminals if you get away with the crime 99 times out of 100. They'll work fine against activists. You won't get a nice black lady like Rosa Parks to deliberately refuse to move if she's courting hard time by doing so. So either you don't get your test case or you get a case of opportunity, who is going to be a LOT less sympathetic (because he -- and it'll likely be a "he" -- is the hardass type who is willing to risk hard time rather than sit where he's told). Martin Luther King might be writing letters from the Birmingham jail, but let's see how much influence he has if he's given 5 years in Georgia State Prison (where he was once sent but quickly released). Hell, never mind Jim Crow; if Scopes had been facing a felony rather than a fine, evolution still wouldn't be being taught in Tennessee.

Southern State Legislatures were the ones making Jim Crow laws, why didn't they increase the sentences?

The idea of making the penalties high enough to deter test cases hadn't occurred to them, I suppose.

I notice that there are still no convictions!

Edit: whoops—a guilty plea does count. I was wrong, then.

I also notice that you’re determined to work in Ron “JEW” DeSantis’s JEWISH hate speech law signed JEWISHLY in JEWrusalem. You’re very persistent. I will stand by what I said before: that bill is a sensible modification of existing law. Hanging out on a campus was already a crime; this breaks out intimidation as a specific motivation with different charges and reporting requirements. As @Gdanning pointed out, there’s a firm constitutional basis for that regardless of Charlottesville.

I notice that there are still no convictions!

There have been two convictions.

I had to look it up, but you’re right. A guilty plea counts.

Is not one of the longstanding criticisms of common law that, unlike in inquisitorial legal systems, common law sees the courts as ‘referee’ rather than ‘assessor’, allowing guilty pleas as a kind of surrender to the law as charged, rather than as written?

I think this is probably unconstitutional, but pleading guilty makes it much less likely the law is ultimately ruled as such.

This is an important point. Even if the law is unconstitutional courts are not going to raise that issue themselves, someone is going to have to argue it. If everyone charged under the law has pleaded guilty no adjudication about the law's constitutionality has actually occurred.

If everyone charged under the law has pleaded guilty no adjudication about the law's constitutionality has actually occurred.

The trial court might well have rejected an argument that the law is unconstitutional, and more importantly, defendants who plead guilty do not necessarily waive the right to challenge on appeal the constitutionality of the law under which they were convicted. Class v. United States, 138 S. Ct. 798 (2018) [citing, among other cases, Menna v. New York, 423 U.S. 61 (1975), which "held that 'a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute'"].

The word "necessarily" is doing a lot of work here. A guilty plea in and of itself doesn't waive all rights to appeal, but the defendant can still waive specific grounds for appeal. There's a lot of debate on whether this is proper, but appeal waivers are still a thing. In Class, the defendant never specifically waived his right to appeal the constitutionality of the statute, so that case doesn't answer the question of whether a waiver that included constitutionality would be valid.

Yes, but the point is that we don’t know enough about the plea deals to know whether they foreclose the possibility of an appellate challenge to the statute.

If everyone charged under the law has pleaded guilty no adjudication about the law's constitutionality has actually occurred.

Nevertheless, the issue is settled that the law is valid. Everyone now understands that it can and will be used that way and it is futile to even attempt to argue that it is unconstitutional. I've noted before how things can go from weird interpretation to settled law without any serious argument being made; we've recently seen it the January 6 stuff with both seditious conspiracy and applying Sarbanes-Oxley's "corrupt interference" charge. And now we're seeing it with "burning an object with intent to intimidate"; it's now understood that demonstrators on the right can be convicted of a felony if they have anything burning. It's facially unconstitutional, no arguments have been made in court about it, and they will not be, because no one wants to hear them. It's settled law.

Nevertheless, the issue is settled that the law is valid. Everyone now understands that it can and will be used that way and it is futile to even attempt to argue that it is unconstitutional.

Absolutely not. Courts at the trial level routinely vary in their analysis/implementation of various statutes. The issue is not legally "settled," and if this charging practice becomes more widespread I would expect plenty of constitutional arguments from defendants.

What might be settled is a pattern and policy in certain prosecutorial offices of charging disfavored speech as "intimidation" under this particular theory.

What certainly is settled is an increased willingness in PMC strongholds to weaponize lawfare and prosecutorial discretion to target conservative activists. Insofar as the process is the punishment, this has been successful. Forum-shopping trial courts has also brought trial-level successes. It remains to be seen how any of this does on appeal, (IIRC).

The issue is not legally "settled," and if this charging practice becomes more widespread I would expect plenty of constitutional arguments from defendants.

The issue isn't formally settled. Practically it is. Prosecutors will prosecute, lawyers will tell their clients they'd better take the plea deal because they'll surely be convicted, trial courts will convict, appeals courts (if reached) will not seriously entertain the arguments -- they'll act as if it's formally settled.

It remains to be seen how any of this does on appeal,

There isn't going to be any appeal.

There was a lot of skepticism that this would stick given that the statute is being stretched quite far from its incarnation as an anti-cross burning law.

As I have noted before, this is incorrect. The VA statute re burning a cross with intent to intimidate is Title 18.2-423. The statute re burning another object with intent to intimidate is a different statute, 18.2.423.1

The significance of this is that it's now precedent for "intent to intimidate" as an avenue for outlawing hate speech, which has traditionally had first amendment protections

No, hate speech directed a person with intent to intimidate has not had First Amendment protection for 20 years, because "Intimidation in the constitutionally proscribable sense of the word is a type of true threat," which of course is not protected speech.

Edit: According to this, "A second man has pleaded guilty for encircling counter protesters with torches on the evening before the deadly 2017 Unite the Right rally in Charlottesville." So, not for simply marching.

I provided the exact text of 18.2.423.1 in my original comment, but why are you saying "no" when you are repeating what I said? Can you cite a case similar to this, if you don't think it's a novel application of the law?

They are using "intent to intimidate" as an avenue for outlawing hate speech, and punishment for participation in a political protest in a public space. You cannot even doubt that this was the motive of the prosecutors, as their prosecution under this statute was a campaign issue! It's clearly a novel case of these statutes being stretched into new territory.

I provided the exact text of 18.2.423.1 in my original comment, but why are you saying "no" when you are repeating what I said?

You said: "... the statute is being stretched quite far from its incarnation as an anti-cross burning law." I said "no" because the statute in question is not an anti-cross burning law; that is a different statute. So, the statement is not correct, and the argument that the cases were weak because the statute does not apply to the objects they burned is wrong.

It's clearly a novel case of these statutes being stretched into new territory.

What do you think that new territory is, assuming that these guys did in fact act with the intent to intimidate, as alleged, and to which they pleaded guilty? You said that "The significance of this is that it's now precedent for "intent to intimidate" as an avenue for outlawing hate speech, which has traditionally had first amendment protections," but Black said the opposite: hate speech with the intent to intimidate can be outlawed, but hate speech without the intent to intimidate cannot (which is why in Black, the Court affirmed the reversal of the conviction of the guy convicted for burning a cross at a Klan rally, but the the guys convicted for burning a cross on a black guy's lawn. And, of course, see New Jersey v. TLO)

Isn't the "intent to intimidate" the big part? It seems hard to prove (and should be), and could be applied to a candlelight vigil as well, which would usually be a bad thing, IMO.

I didn't pay that much attention, but in the images I saw, the torches seemed an incidental thing. If they were waving them in people's faces, sure, fire is serious business. But if they were just walking holding them, no I don't think the law should be stretched that way. It's like if there were a law about wearing military clothes to intimidate, so anyone with a camou-colored backpack, or rangers baseball hat got charged with an extra serious crime.

It does appear that these particular defendants were not just walking holding them, but rather: "A second man has pleaded guilty for encircling counterprotesters with torches on the evening before the deadly 2017 Unite the Right rally in Charlottesville. . . . Then, Tufts alleged, the defendant allegedly swung his extinguished torch in the direction of some counterprotesters."

Whether that is sufficient for a conviction under the statute, or whether those actions should be protected speech, or whether some counterprotestors should have been charged as well are of course different questions. I am merely trying to clarify what is alleged to have happened.

If the torch was extinguished at the time he swung it, it's certainly irrelevant to a charge where an element is a burning object.

No, if the torch was extingujshed, it is irrelevant to a charge of assault with a burning object. But it is relevant to the issue of whether they acted with the intent to intimidate; if I surround you with a burning torch and make threatening statements, the fact that I immediately thereafter assaulted you - with fists, or an object -- is relevant to show that I had the intent to intimidate when I surrounded you. Note that I said only that it is relevant to show intent, not that it is **proof **of intent:

Under Virginia Rule of Evidence 2:401, "`[r]elevant evidence' means evidence having any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence." The scope of relevant evidence in Virginia is quite broad, as "[e]very fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue is relevant." Virginia Elec. & Power Co. v. Dungee, 258 Va. 235, 260, 520 S.E.2d 164, 179 (1999)

Commonwealth v. Proffitt, 792 SE 2d 3, 6-7 (Va Supreme Court 2016).

What do you think that new territory is

"Burning an object with the intent to intimidate" being applied to participants at a political protest holding tiki torches is new territory. If you don't think so, can you show me a single other case where a similar law has been applied to a similar situation?

hate speech with the intent to intimidate can be outlawed, but hate speech without the intent to intimidate cannot

What is unique here is that politically incorrect speech is being interpreted as having an intent to intimidate. Doing a political rally against, for example, demographic change is now legally risky and subject to a DA's interpretation of intent to intimidate. If you don't think so, please show me other cases where participants at a protest like the Charlottesville torch-light march were charged with similar "object burning" statutes. Or will you acknowledge that the "object burning" statute being applied in a protest like this is new territory? If not, then just show me a similar case.

What is unique here is that politically incorrect speech is being interpreted as having an intent to intimidate

IF that is true, then that is obviously a problem. But, is it true? You have no idea, do you? What does the indictment say about what these defendants allegedly did? Let's take three examples: 1) Nazis march in Skokie and burn torches to express their views that Jews are evil; 2) Nazis march in Skokie, with the intent to cause Jews to move out of the city in fear; 3) Nazis march in Skokie, and two of the marchers go up to a counter-protesters and threaten them with their torches.

#1 is clearly protected speech, so if that is all they did, then their speech was protected. #3 is clearly unprotected speech under Black, so if that is what these guys did, their prosecution is fine under Black. As for #2, if that is what they did, then their speech is unprotected under the rule stated in Black. Were I their attorney, I would argue that their case is factually distinguishable from Black, but I would not expect to win at the trial level. On appeal, it would be my victory that would be making new law, not my loss.

Edit: See the edit I just added to my original reply, which says that the men are accused of "encircling counter protesters with torches", which brings it within hypothetical #3.

Let's take three examples: 1) Nazis march in Skokie and burn torches to express their views that Jews are evil; 2) Nazis march in Skokie, with the intent to cause Jews to move out of the city in fear; 3) Nazis march in Skokie, and two of the marchers go up to a counter-protesters and threaten them with their torches.

How can anyone reliably tell 1 and 2 apart?

Well, since we are talking about a criminal statute, the state would have to prove the intent, beyond a reasonable doubt. And, they would have to prove that each individual defendant acted with that intent. In many cases, that presumably will be impossible. Thus, much speech done with the intent to intimidate will go unpunished. Which is as it should be, under both free speech principles and criminal justice principles.

But, in many cases, the statements of individual defendants, made before, during, or after the event, will provide sufficient evidence. Do not underestimate the propensity of criminal defendants to stupidly implicate themselves.

IF that is true, then that is obviously a problem. But, is it true? You have no idea, do you?

Yes, I do, because there have been calls for charges under this statute for years now by voices in the media and various interest groups.

The calls for the charges in the public space and on the campaign debate stage were predicated on the political content of the march and not whatever details may be in the indictment.

All the way back in 2017, Charges won't be filed over torch rally:

Virginia Code Sec. 18.2-423.01B says it is a Class 6 felony to burn an object on a highway or other public place in a way to make someone fearful of death or bodily injury. Chapman said that is true, but he has not been able to confirm whether the state judicial system has ever established burning a torch as a "true threat" under that statute.

On Saturday, City Councilor Wes Bellamy called for the ralliers to be prosecuted under the statute. He did not respond to a text message and a phone call seeking comment on Tuesday afternoon.

Chapman said the law could be amended by the state legislature to clarify whether the statute applies to using a torch in such a way.

"There is a threshold problem with the statute," he said Tuesday. "The statute refers to 'burn an object.' The question could arise — and would in criminal law — as to whether carrying a burning torch falls within the definitional scope of burning an object. That alone could prevent a prosecution.

"In criminal law, ambiguous terms are construed against the commonwealth to narrow their scope. If the law says 'burn an object,' we have to assume that's exactly what the law means. We can't broaden that with interpretation unless the intent that it be broader than that is very clear from the language. That's a threshold impediment."

You, on the other hand, are trying to tell everyone that this isn't new territory, it's the application of settled law. Even so, when I repeatedly ask you to present a case with similar laws/facts, you can only propose a hypothetical rather than point to any actual case where protestors were given similar charges for "burning an object" with the intent to intimidate. The fact that this prosecution has been politicized is proof it's politically motivated. It's been nearly six years, this is obviously politically motivated and I don't know who you think you are kidding by saying that I don't know that.

  1. Did you see my edit? Because you are apparently wrong in claiming that "politically incorrect speech is being interpreted as having an intent to intimidate."

  2. The fact that it is "politically motivated" has nothing to do with whether their speech is protected, or whether this prosecution is a threat to freedom of speech, which were your original claims.

The fact that it is "politically motivated" has nothing to do with... whether this prosecution is a threat to freedom of speech

The fact the prosecution is politically motivated does mean it is a threat to free speech. It means if you want to participate in a protest with a political idea that is being persecuted, like protesting demographic change, there is a risk that the prosecutors will be politically motivated to cause as much legal trouble for you as possible, even stretching statutes that would be impossible to predict, like "burning an object with an intent to intimidate". That risk doesn't exist for protestors with other political viewpoints.

I just saw your edit, they circled the counter-protesters because the counter-protesters positioned themselves at the statue they were marching to... This is why the political motivation of the prosecution matters. If you are planning a protest, and it gets disrupted by counter-protestors who intentionally position themselves in the direction of your demonstration, then you run the risk of being charged with a felony for "intimidation" if you continue the demonstration?

If the situation were reversed, and White Nationalists gathered in the path of a BLM torch-lit march to counterprotest the BLM march, do you think the BLM protestors would have faced the same legal liability even if the facts were identical in every other respect? Or would you acknowledge that the political viewpoints are decisive in how this case has been prosecuted?

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