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Notes -
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:
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.
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.
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.
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