[EMAIL PROTECTED] (Khoder bin Hakkin) writes: > "Mere abstract advocacy of lawlessness is constitutionally protected" > ---but you knew that > > ... > > http://www.sacbee.com/state_wire/story/1700036p-1780464c.html > > Court says gang speech protected by First Amendment > > By DAVID KRAVETS Associated Press Writer Published 1:20 a.m. PST > Wednesday, Feb. 27, 2002 > > SAN FRANCISCO (AP) - Arizona cannot prosecute a former gang member for > advising a gang on its operations, initiation, expulsion and graffiti > practices, a federal appeals court ruled Tuesday. > > The decision by the 9th U.S. Circuit Court of Appeals upheld a lower > court's decision overturning the 15-year sentence of Jerry Dean McCoy, > who was convicted in 1996 of participating in a criminal street gang. > The three-judge panel said McCoy's advice to gang members - prosecuted > under a 1993 Arizona law - was protected under the First Amendment. > > The court pointed out it was mindful of the "serious problems" > posed by street gangs and that it was sympathetic to the Arizona > Legislature's efforts to protect its citizens from "the evils gangs > all too often inflict." > > "We are forced to agree that McCoy's speech, at most, constituted mere > abstract advocacy of lawlessness, rather than an intentional effort to > further illegal activity," Judge Diarmuid F. O'Scannlain wrote. > > McCoy's attorney, T.S. Hartzell, said his client advised Arizona gang > members at two parties, and the discussions were centered on McCoy > saying, '"You guys don't know how to run a gang,'" Hartzell said. > > "What the Legislature intended was to stop people from saying, 'Go > see so and so and collect money from him and if you have to, hurt > him,'" he said. Ginger Jarvis, assistant Arizona attorney general, > said the state would contest the ruling, either by asking the court to > reconsider its decision or by asking the U.S. Supreme Court to review > the case. > > But Pati Urias, a spokeswoman for the Attorney General's Office, said > later that the office hasn't yet made a decision on whether to pursue > the case further. > > O'Scannlain said a conviction for the speech from the former > California gang member "strays dangerously close to a finding of guilt > by association. Such a conviction, even in the context of a street > gang, cannot be squared with the First Amendment, and thus cannot > stand." > > The court, however, added that McCoy could be successfully prosecuted > if Arizona proved that his speech "actually caused imminent lawless > action." > > But prosecutors did not present such evidence, O'Scannlain said, > adding that speech cannot be punished for advocating illegal action > "at some indefinite future time."
