Is Gawker violating its writers’ rights if its chief executive editor de-publishes a controversial post?
What about if a company’s CEO is forced to step down in the face of a threatened boycott over the CEO’s political positions? Is an artist being “censored” if a comic book publisher cancels his covers and suspends him? Is it an unconstitutional “ban” on speech if Amazon and Walmart remove Confederate flag memorabilia from their offerings?
Across the web confusion abounds about what freedom of expression really means.
Most recently, in the messy wake of its sex-shaming post about a private citizen’s violation of Gawker’s neo-Victorian strictures on monogamy, founder and CEO Nick Denton (who pulled the post) had this to say to his editors:
What I can’t accept is an unlimited and subjective version of editorial freedom. It is not whatever an editor thinks it is; it is not a license to write anything; it is a privilege, protected by the constitution, and carrying with it responsibilities.
Literally, every part of that last bit is wrong.
The editorial autonomy of Gawker writers is not constitutional in nature. It is a license granted by their employer—i.e. Denton. Absent a binding contract, it can be revoked at any time without running afoul of anyone’s rights, and certainly not running afoul of anyone’s constitutional rights.
The constitutionally protected freedom that Gawker writers do have (as do we all) is not to publish at Gawker. The Constitution restricts the power of Congress, not the discretion of Nick Denton.
Nor is that constitutionally protected freedom a “privilege.” It is a right.
And it does not have to be exercised responsibly.
It vexes me when people who should know better get sloppy in their framing. Messy language leads to messy thinking and, in the process, dilutes effective defense of this crucial freedom.
Perhaps a libertarian(ish) review is in order.
“FREE SPEECH” V. FREEDOM OF SPEECH
Although routinely used in Supreme Court decisions, the words “free speech” do not appear in the Constitution. In my opinion, overuse of this terminology induces people to mistakenly believe their speech should always be costless and consequence-free.
That is not how it works.
Speech requires a forum, which must be paid for by someone.
Similarly, bookstores are not required to carry every book printed just because the author claims a “free speech” right. The corner market does not have to sell every conceivable magazine. Art galleries do not have to make room for every painting. Radio stations do not have to play every song.
And Gawker does not have to publish every post. (I would totally make it publish this one.)
If a speaker wants his speech to be “free” in the sense of not having to pay for the forum, he must either utilize a public forum or find a private owner willing to host the content gratis. Luckily, in this day and age, there are lots of options for that.
Gawker is not one of them.
Like other private publishers and forum owners, it exercises its right to decline hosting or publishing content it dislikes. There’s a term for that right.
It is tempting to say that Brendan Eich was “forced” to resign from Mozilla over his position on same-sex marriage. That Richard Albuquerque was “forced” to pull his Batgirl cover variant. That TLC was “forced” to cancel the Duggars.
That Nick Denton was “forced” to pull the now infamous Gawker post.
It sounds more melodramatic and provocative to phrase it that way. But to the extent it’s semantically correct, this is not the kind of “force” that runs afoul of the freedom of expression.
Wrongful force is actual physical force used to prevent or punish speech or other forms of expression.
Preventing forceful suppression of expression is a higher order principle. When triggered, that principle transcends issues about the content of the speech being defended.
Because speech is the most powerful weapon that ever has or ever will exist.
It has the power to topple kings, eviscerate falsehoods, destroy paradigms, provoke thought, change minds and hearts, alter the course of history, and transform the world.
And it can do all that without shedding a drop of blood.
A weapon like that cannot be entrusted to the exclusive control of the few. Enlightened rulers using force to curtail speech have too often gotten it wrong. Power once ceded can rarely be retrieved, and battles not fought with words and ideas will be fought instead with violence and bloodshed.
We cannot retain the best of speech without protecting its worst. We cannot extract its power to do harm without diluting its power to do good.
EVERYTHING BUT FORCE IS FAIR GAME
That being said, everything short of physical force is fair game.
A Congressional communications director can be pressured into resigning (or fired) for making snarky comments about the President’s daughters. TLC and A&E can cancel their reality television lineup for any reason consistent with the contracts negotiated. Customers can boycott wedding photographers or bakers in retaliation for expression of disfavored opinions. Landlords can refuse to rent to people with Confederate flags in their rear windows. Employers can bypass applicants over their social media postings.
Firing. Boycotting. Refusing to hire. Pulling advertising. Cancelling subscriptions. Social media flame wars. De-publishing. Disassociating. Shaming.
All of these are fair game. All of these are themselves protected acts of expression.
They may make life unpleasant for the target. They may feel coercive or even deeply wounding.
They’re supposed to.
If speech didn’t have that power, we wouldn’t bother protecting it.
Deciding to refrain from speaking because such consequences are too unpleasant is not a response to force. It is a response to speech.
GAWKER IS GETTING SPOKEN TO, NOT SUPPRESSED
If Gawker were being threatened with forceful suppression of its speech, defending against that violation would be a higher order principle that transcended all others. Personal feelings about the content of the speech would be secondary.
But where no force is imposed or threatened, those secondary principles are the only ones at play. The whole point of the higher principle is to create a circle of freedom in which ideas, without limitation, can be explored and judged on the merits. If we never got around to the judging part, we would destroy the very reason for preserving the freedom.
Nothing happening at or to Gawker (in this specific case) poses any threat to anyone’s fundamental right to free expression. The writers are free to write. The owners of Gawker are free to choose what to publish. The editors are free to “fall on their poisoned pens” in protest. Advertisers are free to abstain. Readers are free to boycott.
None of this constitutes a violation of anyone’s freedom. It’s what freedom looks like.
The Alabama House passed a bill on Thursday that allows judges to refuse to perform gay marriages. It passed after a four-hour debate by a vote of 69-25. More “religious protection” bills are on the way according to groups pushing this legislation.
The bill was passed to ease fears that judges and ministers would be forced to perform gay marriages if court rulings legalizing gay marriage in Alabama were upheld by the U.S. Supreme Court. This bill to be blunt is a travesty, would open the door to lawlessness by Alabama’s judges, and should be vetoed.
The first problem with this bill is that it tries to link judges performing gay marriage ceremonies with other travesties on this issue, such as requiring bakers to bake cakes for gay wedding ceremonies. There is a major moral difference between a private company refusing to offer a service and government official refusing to perform their legal duty. Judges are bound by law to serve all of their constituents and perform certain duties as described, despite their own personal feelings on the matter. One of those duties is solemnizing marriages. A judge cannot refuse to perform an interracial marriage because they personally disapprove it.
On the other hand, fining or legally punishing a private individual because they refuse to perform services for a gay wedding is immoral. In this age of Yelp and social media where customers can easily leave reviews of businesses, we need to ask ourselves if anti-discrimination laws covering the private sector are obsolete. If a business is discriminating based on gender, sexual orientation, race, or religion; it’s more easy for customers to identify those offending businesses and for people to vote accordingly with their pocketbooks. There is no need for the state to get involved and punish businesses with fines and other punishments.
If a judge cannot perform a gay marriage ceremony because they disagree with it, they should not be a judge. This is like refusing to sentence someone to jail because they object to a law. Judges do not have that discretion in criminal law and should not have that kind of discretion in marriage law.
As for ministers being forced to perform gay marriages, that’s a red herring. The First Amendment already protects the rights of ministers to refuse to perform gay marriages. The decision of churches to solemnize marriages to whom ever they want, as long as they can legally consent, is a protected religious practice. This legislation to protect them is not necessary.
The best way to solve is to divorce government from the act of solemnizing marriage. Make the only legal paperwork that has to be signed off is the marriage contract itself. Whenever a county or parish official files or signs off on a contract, they’re not passing judgment on the issue. All they’re doing is just filing legal paperwork so it can be enforced in courts. We should also look into ways into getting government out of marriage for tax purposes and other services.
All of these “religious protection bills” miss the big picture. Why should private businesses have the right to discriminate against potential customers based upon their religious beliefs and not have the right to discriminate based on other factors? Here’s another way to put it, why should gay marriage opponents have special rights?
Instead of writing “religious protection bills” to protect business owners from being bankrupted and driven out of business by government agencies for deciding who they want to serve, legislatures should consider a different approach. Every legislature should pass a bill or better yet an amendment to their state’s constitution stating this:
The right of any private business to deny service for any reason, except for emergency medical services and emergency lodging in a licensed hotel, shall not be infringed by any law.
Anti-discrimination laws, in this era of social media, are relics of the past. It’s time to make these laws history and let the marketplace punish discrimination. I don’t know about you, but I prefer to trust ordinary people than the government.
I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.
Wisconsin Senate approves right-to-work bill, sends to state Assembly
BY BRENDAN O’BRIEN
The Wisconsin Senate narrowly approved a “right-to-work” bill on Wednesday that would bar private-sector employees who work under union-negotiated contracts from being required to join their unions or pay them dues.
The bill, which would make Wisconsin the 25th U.S. state with a right-to-work law on the books, cleared the Republican-led Senate on a 17-15 vote following hours of debate marked by periodic angry shouts from opponents in the Senate gallery.
Supporters of organized labor chanted “Shame!” as the legislation was passed and sent for further consideration to the state Assembly, where Republicans also hold a majority.
One Republican senator, Jerry Petrowski, broke with his party and joined all 14 Democrats in the chamber in voting against the measure.
Wisconsin Governor Scott Walker, a possible Republican presidential hopeful, is expected to sign the bill if it reaches his desk.
Walker drew accolades from conservatives across the nation in 2011 when he ushered through legislation curtailing the powers of most public-sector unions in Wisconsin amid large protests at the state capitol in Madison.
Supporters of the right-to-work measure contend it could attract more businesses to the Midwestern state.
“I think this is something that is going to have a direct impact on the manufacturing sector in Wisconsin,” Senate Republican leader Scott Fitzgerald said after the vote.
Opponents cast the bill as an assault on organized labor and blue-collar workers that would limit union revenues.
“They are evaporating the middle class, and no one in this room seems to care,” Senator Dave Hansen, a Democrat, said during the floor debate.
So ignore the rather clearly biased language in the piece and video linked above, if you bother clicking through and reading it… If you’ve seen one piece about the subject, you’ve pretty much seen them all, and this one is no different.
Wisconsin is debating “Right to Work” legislation in house committee right now, after passing in the senate. A right to work measure (which may or may not be substantially identical to the one passed by the senate) is likely to pass the house as well, and governor (and likely Republican presidential candidate) Scott Walker is likely to sign it.
As per usual, leftists are up in arms about anything that might favor individuals over organized labor…”Anti-worker, anti-poor, anti-little guy, anti-union, destroying the middle class, 1% evil” etc… etc…
Can someone tell me how making it illegal to force someone who doesn’t want to join a union, to join a union… is anti-union?
That’s all “right to work” means… You can’t be forced to join a union if you don’t want to, and employers can’t be forced by the government to recognize or deal with a particular union if they don’t want to.
The “right to work”, is simply the right to freely associate and form contracts as we choose, which is supposed to be a right guaranteed us in this country (of course, so often it is not… but that’s another issue entirely).
Wait… What? Unions can force people to join who don’t want to?
Yes, they can, and they do.
Most people don’t know this, but in 26 states, unions are given special powers and privileges by the government, which you as in individual, or a private company or other organization would not have.
One of these, is that you can be forced to join a union against your will, if you want to get a job in a particular industry, or at a particular employer, or to keep your job at an employer after a union comes in.
Worse, in some states, you can opt out of the union, but even if you do, the union can still take dues straight out of your paycheck against your will, as if you were a member. They can also negotiate for you against your will, and set the terms and conditions under which you work, against your will.
Of course, since you aren’t a member, even though they’re taking your money and controlling your job, you don’t get to vote in the union, control its decisions in any way, or get any of the benefits of membership. The union gets your money, and all the benefit as if you were a member, without actually having to be accountable to you at all. And there’s nothing you can do or say about it.
Oh and the union can then do things like use that money to get politicians you oppose elected, get legislation you oppose passed, and change the terms and conditions of your employment against your will, without your approval or consent.
In those same 26 states (as well as federally in some cases), employers can be forced to recognize and negotiate with a union, even if they don’t want to. In fact, even if the union doesn’t actually represent their employees in some cases, or only 50.01% of their employees decide that a particular union will represent them.
“Right to Work”, is about ending some of those, frankly insane, conditions that unions operate under.
… Or at least that’s what it’s supposed to be about… It doesn’t always end up that way, because politics is what it is, so you have to be careful and pay attention to the details…
In “right to work” states, unions are still free to form, recruit members, and to collectively bargain in those members interests with employers. Workers are still free to join unions. Employers are still free to negotiate terms and contracts with the union, and if the employers don’t want to negotiate, unions are still free to use the power of their membership to make the employer negotiate through strikes, work stoppages and slow downs, and other organized labor actions.
The only difference, is that the union just can’t FORCE anyone to join the union, or force employers to negotiate with the union, or get the government to do it for them.
Why is this a bad thing?
It isn’t. Straight up, it isn’t.
It’s not bad for employees, it’s not bad for employers, it’s not actually bad for the unions if the unions are doing what they’re supposed to be doing, It’s not bad for consumers who consume the goods and services these employers provide.
In fact, in reducing union overreach to whatever extent it may (probably not too much, but one can hope), and in reducing the overall cost of doing business in the state of Wisconsin, it’s likely to benefit consumers with lower prices, and potentially with more business and more jobs in the state
This doesn’t always work out… It has generally done so in relatively business friendly states like Tennessee, North and South Carolina, Georgia, Alabama (I said relatively… relative to Illinois, New York, Wisconsin etc..). In those states, which are right to work, non union manufacturing has generally done well, in some cases even boomed. Not only that, but wages have substantially increased in those areas, not crashed as predicted by unions.
Right to work has not had as positive an impact in say, Indiana, or Michigan (yes, Michigan has been right to work since 2012… and yes, organized labor is still having a collective fit over that fact), which are comparatively less business friendly, higher tax, higher regulatory burden, and higher cost of living. In fact, mostly, companies have used the change in status to help them get rid of legacy contracts which were burdening their bottom lines, and then move to other states.
That however isn’t really the fault of right to work… it’s the decades of anti-business regulation and being forced to accept bad union contracts (and to be fair, decades of bad management as well).
Overall, right to work in and of itself is not a negative for anyone… well… except two groups.
The only parties it’s bad for, are union officials, and the politicians they’re in bed with). The officials depend on the politicians to pass legislation that favors the union officials, in exchange the politicians depend on the officials for large donations, and the use of their organization for street level politics (campaign volunteers, donor lists, call lists, phone rooms, rally fillers, doorbell ringers etc…). Without the forced membership and dues, the union officials don’t have as much money to donate to those politicians in exchange for favors, nor as many warm bodies to throw at their campaigns.
Also, if people can leave the union at will, it means that those officials have to watch their steps, and actually be accountable to union members…. Unfortunately something which has proven to rarely be the case today.
Leaving aside the corruption angle, and even the economics of it…
Does “right to work” reduce unions power? Potentially yes, if people don’t want to join, or want to quit the union.
However, I don’t see that as a bad thing. Why would that be a bad thing?
If people don’t want to be members of the union, why should the union get more power? Or any power at all?
Shouldn’t a union get it’s power from the strength of it’s membership, who support it, and in turn are supported by it? Shouldn’t a union attract and retain members because they are effective at doing so?
If they can’t do that… why should the union exist at all?
If they CAN do that, then why do they need the government to force people to join, and force companies to negotiate with them exclusively?
If the unions actually do what they’re supposed to do, and what they say they do… Why is this even an issue?
Right… thought so…
Here’s the thing though… Even if it were a provable economic net negative, that actually did harm jobs and wages, and even if all of the horrible terrible no good very bad things unions and democrats claim of right to work were true…
…I would still be in favor of right to work.
It’s a question of individual rights
I generally favor right to work, because I’m in favor of fundamental individual rights, including, but definitely not limited to: freedom of conscience, freedom of association, freedom of self determination, the right to private property, the right to the fruits of ones labors, and the freedom to make contract as one sees fit.
I generally support right to work legislation, presuming that’s what it really is (as with all legislation, what it claims to be, is often nothing to do with what it is, so pay attention to the details), because no-one should be forced to join any organization against their will (even if it’s absolutely for their own good), and no organization should have the right to control others in the way unions do, without those persons consent (even if doing so is to those persons benefit). It really is that simple.
For that matter, in general, I oppose involuntary collectivism, and preventing involuntary collectivism is what “right to work” is supposed to be about.
I’m all for voluntary collectivism… absolutely 100%. If you agree and consent to be a part of a group, and to take action as part of that group, or be represented by that group, great. More power to you, and to them.
In fact, I’m all for unions. I think collective bargaining is a wonderful and powerful tool, and I wish more people across more industries and market segments would take advantage of it.
An aside… I’m not just blowing theoretical smoke here. I’ve got a personal stake in this, both as a matter of principal, and as a practical matter in my own profession.
The level of worker exploitation, and in general negative, harmful, and just plain stupid labor practices in information technology, my chosen profession, is absolutely despicable.
Employers routinely extract far more labor from employees than they are paying for, or than that is reasonable for employees quality of life or professional development; while at the same time deliberately suppressing those employees wages, and denying them opportunities for improvement or advancement.
… and we allow them to do this. We accept it, because we don’t believe we have the power to change it, or we feel too insecure to do so.
The only way these conditions are going to change, is if they obviously and clearly no longer work to increase profits or improve stock prices.
Actually, it’s been repeatedly and conclusively proven they not only don’t help, but they substantially harm organizations, including their bottom lines… but execs still love them because the stock market loves them (That’s another issue entirely)
That being the case, the only way needed change is going to happen, is if enough of us in the profession stop accepting these conditions, and do something about them.
A company can’t be pumping its stock prices, if it doesn’t have anyone keeping it’s computers and networks operational…. or at least not for more than a few weeks.
Stop working for companies that use these practices. Insist on being paid for our time. or in receiving compensatory time off. Report companies for labor law violations, and make sure the laws are properly and evenly applied, through the use of the media and political pressure (I think most labor laws are horrible and stupid and shouldn’t exist, but so long as they do, the greater tyranny is that they are applied capriciously and unevenly based on political whim, and lobbying).
Most importantly, as managers, leaders, and thought leaders in the industry, don’t allow and accept these practices in your own organization. When they pop up… and they will.. gather together, and pound them into the dust before they can take over.
One of the more effective ways we could do all of that, is with collective bargaining, and collective and consistent messaging to the media, and politicians (though sadly, I don’t think it’s likely to happen any time soon). Not necessarily a union, but some type of voluntary collective organization to increase our negotiation power and leverage, and help to prevent things like companies requiring hundreds of hours of uncompensated overtime.
If enough of us act… whether collectively or as individuals, we can force changes. Without enough of us acting in concert, we can’t… And if we can’t, we’re left depending on the government to “fix” things… and you know how I feel about that.
It’s when you take that choice away by force, that I have issues. Forced unionization is never OK… and that includes “democratic” forced unionization.
Just because you got a few dozen of your friends together and you all voted to give you the “right” to control everyone else, doesn’t actually give you the right to control everyone else. Even if there’s 50 million of you, and 1 of everyone else. Otherwise, there are no individual rights, only privileges and entitlements dispensed by the will of the majority. That’s no less tyranny than a dictatorship of one man… and in some ways is a greater one.
“Oh, but democracy is great. It’s the will of the majority, so you just have to go along”
Right… because giving more control over your life to everyone else is always a great idea, especially when jobs and money are at stake.
Giving your coworkers a vote on how much you can make, how much you can get paid per hour and how much of a raise you can get when, how many hours you can work, what tasks you can do, how you can do them, whether or not you can be promoted and when…
…Actually, often a veto, not just a vote…
And people like this idea why?
No thanks. Not up for that.
I have no problem with unions, in fact I think they’re great in theory, and I’d like to see a lot more of them, a lot more active, doing what they are supposed to be doing…
… So long As:
1. Participation (including fees or dues) is voluntary
2. They are not given special privileges or powers over individuals or employers by the government
3. Individuals and employers are free to negotiate and form contracts outside the union
4. The union cannot set the wages, benefits, conditions and terms of employment, and working conditions; for individuals or employers, without their consent.
If they’ve got consent for collective representation of all the workers, and the employer agrees to the conditions and terms… GREAT. That’s what collective bargaining is for.
Otherwise, what gives you or anyone else, the right to determine those things for me, my employer, or anyone else?
I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.
Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra
In 2013, San Diego experienced a rash of shootings.
Brandon Duncan is a San Diego musician. He has no criminal record. He is not alleged to have pulled the trigger, to have been present, to know who was present, or even to have known contemporaneously that the shootings had occurred. He is not alleged to have masterminded the murders, paid anyone to commit them, or otherwise aided in their commission.
Nevertheless, Duncan may wind up doing 25 years to life for the shootings.
Sales of an album Duncan made in 2012 may have benefitted from a surge in gang stature and respect in the wake of the shootings.
Duncan apparently creates music about gang activities. As Kevin Boyd reports at IJ Review, the lyrics include one line about holding a gun with no safety and another about a full clip making someone’s top disappear. The tracks can be heard here.
In any case, creating music about violence and criminal activity is not illegal. That is Constitutional Law 101. The First Amendment protects freedom of expression, including violent content in music, literature, art, media, video games, etc.
Mario Puzo could not do 25-to-life if an upsurge in Mafia violence caused a renewed interest in his Godfather novels. He could not do 25-to-life even if prosecutors alleged that his books glamorized organized crime, thereby contributing to an increase in such activity.
That California does not attempt to prosecute authors like Puzo invites speculation that the state is discriminating against certain content and certain genres of art and its creators. Italian-American authors writing fiction novels about Mafia violence are acceptable. African-American musicians creating rap music about street gang violence are not.
Whether or not such speculation is justified, prosecutors claim that Duncan is not merely a musician creating unsavory content. They allege that Duncan is actually a member of a gang based in Lincoln Park, California.
Of course, it is also not illegal to belong to a gang.
That too is Constitutional Law 101. The freedoms of assembly and expression necessarily entail the right to free association. The State of California can neither prohibit Duncan from associating with the people of his choosing, nor punish him for doing so.
But there is yet another dot to connect. Duncan is being charged under a California penal statute purporting to make it a crime to “benefit from” the illegal activities of a “criminal street gang” in which one “actively participates:”
…[A]ny person who actively participates in any criminal street gang…, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity…, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.
According to NBC San Diego, prosecutors explain their theory of this offense as follows:
“If you are a documented gang member, and you benefit from or promote the activities of the gang, you can be held responsible for crimes the gang commits,” the district attorney said.
To be found guilty, prosecutors must prove the suspects are active gang members, that they had “general” knowledge of the gang’s activity and that they profited, assisted or benefited from the activities. The suspects do not have to be directly involved with the crime to be found guilty.
Those benefits could be economic, like album sales, or intangible, like respect, the district attorney argues.
Prosecutors are apparently presenting the aforementioned music lyrics, plus social media pictures, to demonstrate Duncan’s membership in the Lincoln Park gang. They further argue that the sales of his 2012 album benefitted from the 2013 shootings.
Duncan’s defense attorney, Brian Watkins argues that the songs are just artistic expression, and that while Duncan has associated with some members of the gang because he grew up in the same area, he is not himself a member. In an interview with NBC San Diego, Watkins had this to say:
“I mean, to imprison someone for 25 years to life because of artistic expression is something not even the worst communist regimes have done…”
The DA’s office counters that the law was passed by the voters and found constitutional by California’s Supreme Court. That decision was People v. Johnson (2013), wherein the Court analyzed ways in which Section 182.5 diverges from the traditional crime of conspiracy:
[T]raditional conspiracy requires both the specific intent to agree, and specific intent to commit a target crime. … A 182.5 conspiracy does not require any prior agreement among the conspirators to promote, further, or assist in the commission of a particular target crime.
The Court seemingly reassures itself that the intent requirement is replaced with a requirement of “active and knowing gang participa[tion] … with the … intent to promote, further, or assist in the commission of a felony by other gang members.” However, just two paragraphs later, the Court concedes that:
[S]ection 182.5 brings within its ambit not only a gang member who promotes, furthers, or assists in the commission of a felony. It also embraces an active and knowing participant who merely benefits from the crime’s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense.
So Section 182.5 dispenses with the traditional intent requirement, replaces it with a requirement that the defendant have been an active and knowing participant in the gang (but not the crime), and then punishes the defendant for receiving any benefit, however intangible, from a crime committed by other members of the gang.
That sure sounds like doing 25 years to life for one’s unsavory associations.
Long-standing criminal statutes already address racketeering, commission of or participation in, conspiracy to commit, or aiding and abetting a crime. What is the need for this particular statute other than to prosecute someone who cannot be demonstrated to have violated those traditional criminal statutes?
Ken White at Popehat reached out to the San Diego District Attorney’s office and reports that:
* The DA’s theory is that Duncan promoted the gang by writing rap music about gang activity, and that he received an “intangible benefit” — their words — by his music becoming more credible or popular. The DA did not present any evidence that the gang’s crimes had any impact on album sales.
* The DA tried to show that Duncan was a member of the gang by some photos of him with gang members throwing gang signs. But they asserted that his rap music also showed that he participated in the gang, one of the elements of the offense.
* The DA’s theory is that when a gang commits a crime all members of the gang automatically benefit for purposes of Section 182.5. That theory, if accepted, would effectively eliminate one of the elements of the crime so that the DA would no longer need to prove that any individual gang member “willfully promotes, furthers, assists, or benefits from” the criminal activity.
In short, based at least on reports of their stance at the prelim, the DA seems to be saying that Duncan violated the statute by being a member of the gang and by rapping about the gang.
In the meantime, Duncan said on an interview with CNN that the studio is his “canvas” and that he would love to continue to make music, but:
“[T]hese people have you scared to do anything around here.”
In response to the looting that has damaged numerous businesses in Ferguson, MO since last Monday’s announceemnt that former police officer Darren Wilson would not be indicted for killing Michael Brown, a group called the Oath Keepers descended onto Ferguson to protect businesses from being damaged or destroyed by rioters, oftentimes by setting up armed sentries on rooftops. Over the long weekend, St. Louis County’s police officers demanded that the group disperse.
Threatened with arrest for operating without a license, the volunteers argued but eventually left their positions early Saturday, Rhodes said.
“We are going to go back as protesters,” Rhodes said Saturday afternoon.
“We thought they were going to do it right this time,” Rhodes said of government response to the grand jury decision released Monday in the Michael Brown case. “But when Monday rolled around and they didn’t park the National Guard at these businesses, that’s when we said we have got to do something.
“Historically, the government almost always fails to protect people,” he added.
The Oath Keepers were started in 2009 as a militia-like force that advocates military and law enforcement personnel disobey orders that are in violation of the Constitution of the United States. Despite accusations of racism, they were started in 2009 by a Mexican-American, Stewart Rhodes, who graduated from Yale Law School and once worked for Ron Paul. They have dodged criticism for years and are regarded by some as extremists or domestic terrorists, though they maintain a 30,000 strong member base and are highly regarded among libertarian parts of the Tea Party movement.
I am personally sceptical of the Oath Keepers because I feel their tin-foil, Alex Jones-like views on the government are extreme to say the very least. Any group that gains traction due to the election of one man and finds common cause with the birther movement tends to draw scrutiny. With that said, I find it very hard to blame anyone locally for being very happy to see them. Whatever one’s views on Michael Brown’s killing – I was very dim on the “no indictment” ruling – the fact is that St. Louis County has handled the entire situation in Ferguson and surrounding areas in an illegal, borderline evil fashion. They instigated an already edgy populace from moment one, turning military-grade weapons on the citizens they “police” in a method of crowd control so poorly conceived it raised legitimate questions as to whether or not the police were intentionally trying to rile their citizens.
As the grand jury’s announcement approached, the mistakes continued. It was announced at 8PM CST, with advance warning and a preemptive call for National Guard support. They gunned for a fight, prepared for a fight, and then stoked a fight. Since then, the overly militarized police, and the actual military, guarded the police station but left local businesses to burn. After blaming the failure to indict a man who shot at an unarmed teenager twelve times on social media, they proceeded to protect their own stuff while totally abandoning any pretense of protecting anyone locally. The failures of the Ferguson and St. Louis County police departments are so legion, so flagrant, and so damaging that multiple people involved in them should never hold jobs in authority again. Their treatment of those doing their job for them only exemplifies what has been a clown car.
In light of that, is it any wonder that the Oath Keepers – at heart, an anti-government organization that is convinced martial law is imminent – would show up? This isn’t just why they were conceived; it proves all of their fears, all of their statements, and all of their actions to be legitimate, or at the very least to have a degree of truth to them. “The government is against the people!” isn’t just the cry of a guy who failed Western Civ; in this case, it’s a provable fact. The police in this area have shown more effort in going after football players than they have in any form of police work.
In striking down the Oath Keepers, the local authorities might have made them more powerful than they could ever imagine. I expect membership to spike, hard.
Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.