Hail, hail, the gang’s all here. Now I see their colors, on some of their brothers…

Aug 07, 2009 Hail, hail, the gang’s all here. Now I see their colors, on some of their brothers…

Bill of Rights. (From the public domain.)

Florida law outlaws even the display of gang symbols on the Internet. Would such a ban apply today to Our Gang, which some might have seen as including some ne’er do wells; Kool and the Gang; or the Gang of Four, which in a show trial was convicted as a group of criminals in a Chinese show trial?

Thanks to Carlos Miller for posting on an ongoing Florida prosecution of two men — Elvis Rodriguez and Richard Figueroa-Santiago — over their posting of gang symbols on MySpace.

The law involved appears to be Fla. Stat. § 874.11, which provides: “Any person who, for the purpose of benefiting, promoting, or furthering the interests of a criminal gang, uses electronic communication to intimidate or harass other persons, or to advertise his or her presence in the community, including, but not limited to, such activities as distributing, selling, transmitting, or posting on the Internet any audio, video, or still image of criminal activity, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The Florida code provides definitions related to the foregoing provisions here at Fla. Stat. § 874.03, including:

874.03  Definitions.–“As used in this chapter: (1)  ‘Criminal gang’ means a formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols, including, but not limited to, terrorist organizations and hate groups.”

Although time does not permit a full analysis of the utter unconstitutionality of this statute, it is fraught with First Amendment violations, including unconstitutional vagueness and overbreadth. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).  The huge breadth of this statute could conceivably include posting of swastikas, the wearing of white hoods, and the burning of crosses on private property, all of which must be kept constitutionally protected if we are going to protect expression that each of us holds valuable, even though most of us eschew nazis and klanmembers. (By the way, although the nazis adopted the ancient swastika symbol, in the East the swastika has long had positive connotations, including in Hinduism and Buddhism. Are we going to let a jury decide whether a person made a legitimate or illegitimate use of a swastika, bird-flip, or any other symbol?).

This Florida electronic communication criminal statute covers all electronic communication, including online, by phone and email, and by television or radio, it would seem, and seems to even cover a person e-mailing a message that “I am a Crip”. Consequently, although the statute speaks of requiring the intent to further the interests of a criminal gang, it will inevitably lead to prosecutions of people who mention gangs or use their symbols or colors (knowingly or unknowingly) with no purpose of helping any gang.

The recent news story is not clear on whether the prosecution of Rodriguez and Figueroa only arose this year. I found an online docket sheet for defendant Figueroa, but not Rodriguez, which arose in 2008 and which seems to allege a violation of the statute, but the docket does not contain any factual allegations, including whether MySpace is implicated in that prosecution.

Florida probably is not alone with such First Amendment-violative laws concerning gangs. Please weigh in with your own information about anti-gang laws.
Jon Katz.

ADDENDUM: Thanks to Theodore Morse and Arthur Sullivan for their refrain from “Alabama Jubilee” (written during virulently racist times in the South, mind you), which inspired the title of  today’s blog entry.

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