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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.
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
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.
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.
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)
"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?
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.
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.
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.
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