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PaperclipPerfector  11mo ago (text post)   28371 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.

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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