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PaperclipPerfector  11mo ago (text post)   28346 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).

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