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PaperclipPerfector  1yr ago (text post)   33392 thread views

Culture War Roundup for the week of April 17, 2023

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Remember the Alt-Right march in Charlottesville in 2017? Feels like forever ago. Today several people were indicted on felony charges for "intimidation" related to the tiki torch march:

An Albemarle County grand jury issued indictments of burning an object with the intent to intimidate.

According to a release, these indictments allege an offense date of Aug. 11, 2017.

The charge is a Class 6 felony and anyone who is convicted may face up to five years in prison.

These indictments are part of an ongoing, active criminal investigation connected with the march and the violent Unite the Right rally that occurred the next day.

There is no statute of limitations on felonies in Virginia.

Here is Section 18.2-423.01-B of the Code of Virginia:

§ 18.2-423.01. Burning object on property of another or a highway or other public place with intent to intimidate; penalty.

A. Any person who, with the intent of intimidating any person or group of persons, burns an object on the private property of another without permission, is guilty of a Class 6 felony.

B. Any person who, with the intent of intimidating any person or group of persons, burns an object on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury is guilty of a Class 6 felony.

Apparently this case was the subject of a minor debate in the campaign of the sitting prosecutor and his challenger:

But in Virginia, prosecutors come and go and a felony lives forever. In an October 2019 debate between then-sitting prosecutor Tracci and his challenger, Jim Hingeley, Tracci again scoffed at the idea of indicting these cases, saying Hingeley's belief that it was even possible was a sign he was inexperienced and wrong for the job. A month later, in November 2019, Hingeley won the election. Now it seems he's trying to make good on his campaign promise of proving Robert Tracci wrong.

It goes without saying that this is a political persecution, a few years ago I would have assumed First Amendment protections would still hold even for the far right but I think that ship has sailed. I am confident they will be able to get convictions or guilty pleas for a lesser sentence. Who would want to face five years for holding a tiki torch at a political rally?

I am a pretty law and order guy. But there is something untoward about running for office on the idea of prosecuting person X or persons Y for activity Z performed prior to becoming DA. It is side we prosecute crimes; not men. This seems the opposite.

The basic premise of 'rule of law' is that the law/justice is 'blind' and every person is therefore 'equal' before it.

Even if we carve out certain practical exceptions the general shared delusion is that anyone who breaks a law is prosecuted for it and given the same treatment as anyone else breaking the same or similar law.

Due process and all that.

Making the law an explicitly politically biased institution is... well it breaks that shared delusion to the point where law is just another cudgel for hitting the outgroup. And since the law is dependent on that shared delusion (that and men with guns) to actually operate, it's fair to say we cease to be a 'nation of laws' in the scenario where nobody actually believes law is blind and people aren't treated equally before it.

Anarcho-Tyranny is a useful term for this, but doesn't quite express how corrosive this is to some very fundamental assumptions undergirding our nation.

Making the law an explicitly politically biased institution isn't anarcho-tyranny; it's unadorned "tyranny".

It's not "tyranny" it's anarchy, a return to the state of nature.

Certainly not. A Hobbesian absolute sovereign who applies (or makes) the law to favor those who support him and disfavor those who oppose him is still protecting his subjects from the state of nature. Just not from himself.

Sort of?

Tyranny tends to assume that everyone is still equal under the law, they're just all equally oppressed by the tyrant. If littering is punished by summary execution, at least you know that EVERYONE who litters gets the same punishment.

Anarcho-Tyranny captures the part where the tyrant in question almost entirely relaxes the rules around certain groups that have, for some reason, attained favorable status in the tyrant's eyes, whilst still claiming to vigorously enforce them for everyone else.

The tyrant isn't equal to everyone else under the law, otherwise he's not a tyrant. I'd say the tyrant's ability to decide on a personal basis who to oppress and who to favor is what makes him a tyrant in the first place.

If littering is punished by summary execution, and the law is enforced in a fair manner, it would be a very harsh law but not necessarily tyranny. In principle a democracy could have such a law if the populace voted for it.

Yes yes there has to be a tyrant for any of this to make sense.

The littering example is just to suggest the disproportionality of punishment.

Real petty tyranny makes it illegal to, e.g. insult or otherwise demean the tyrant, or requires housing of the tyrant's soldiers in your personal home, or seizes private land for the tyrants personal use, all under color of law.

Where the law is unfair and unjust on it's face.

Anarcho-tyranny requires that the law appears fair and legitimate (e.g., you have guaranteed "freedom of speech' under the law) whilst in reality the tyrant declined to enforce whenever it would be inconvenient to do so.

A variant of this statute has actually been tested before the Supreme Court in Virginia v. Black. They held that it is constitutional to limit intimidating speech that represents a true threat, but invalidated part of the statute that directed juries to infer intimidation from the mere act of cross burning.

The statue in the Supreme Court case appears to be the template for this one. The original referred to cross burning specifically, this one is more generic.

The Court did qualify their ruling as pertaining specifically to cross burnings and "particularly virulent form[s] of intimidation":

The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R. A. V. and is proscribable under the First Amendment.

A general ban on burning objects, especially objects whose designed purpose is to be burnt, doesn't seem to fit.

long and pernicious history as a signal of impending violence

While tiki torches don't have a long history at all of being associated with the altright, I am pretty sure Charlottesville started that association. I've met people in real life mention tiki torches as if they automatically imply someone is altright, and have heard someone say, "now I can't use tiki torches anymore."

If tiki torches are a shibboleth for the outgroup, and the law is just a tool to beat them, then who's to say the tiki torch doesn't have a long pernicious history of a signal for violence? Was there any principle behind the "cross burning has a long history" here? Wasn't it just, "cross-burning is a low-status racist thing, so sure let's punish them."

The Court did qualify their ruling as pertaining specifically to cross burnings and "particularly virulent form[s] of intimidation": ... A general ban on burning objects, especially objects whose designed purpose is to be burnt, doesn't seem to fit.

I know nothing about the specifics of what these particular guys are alleged to have done which supposedly constitutes intimidation, but the fact that these were tiki torches rather than crosses is not relevant under Virginia v Black. The Court didn't say that the general rule is that states cannot ban burning objects with intent to intimidate, but that crosses are an exception; rather, they said that the general rule is that burning crosses is protected speech, but that doing so with the intent to intimidate is an exception. As the Court said, "Intimidation in the constitutionally proscribable sense of the word is a type of true threat." And true threats are not protected speech. States can, of course, pass any law they want, unless the law violates the Constitution (federal or state). So states can outlaw all forms of speech intended to intimidate, including burning objects of all sorts.

Remembers 2020, laughs to avoid crying

The true threat exception is extremely narrow; among other things, the speech in question must be aimed at a specific person. So, the 2020 BLM protests would not qualify. Nor would the Unite the Right march; and, since only a few people have been charge, there must be something that they are alleged to have done over and above simply marching and carrying torches. What that is, and whether it actually brings them within the ambit of the exception, neither of us know yet.

given the DA appears to be malicious and so the law barely matters, do you think there would have been less of a case if they had, I dunno, flashlights on sticks instead of flames?

Again, without knowing the specific factual allegations, it is impossible to know. But of course flashlights would not fall within this particular statute.

Sticks alone would suffice. You ever been hit with one?

The process is the punishment. Even if their imminent convictions are overturned because of the first Ammendment, they will have been enormously harmed by the long and expensive trial.

I would guess the original intent of the law was to outlaw cross-burning.

No, cross burning with intent to intimidate is a separate crime in VA.

If you can occasionally burn a cross on a Black family's lawn without it rising to intimidation,

Note that your block quote misstates the decision. The law at issue in Virginia v. Black was unconstitutional only because of one provision. The provision said: "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

So, the Court did NOT "h[o]ld that the provision allowing the jury to infer intent to intimidate from the public burning of a cross was unconstitutional," because the provision didn’t say that. Rather that the provision required the jury to infer that intent, if not rebutted by the defendant.

And note that there were two cases consolidated in Black. The first conviction, involving people who burned a cross at a Klan meeting, was reversed. The second, involving defendants who burned a cross on a Black family's lawn, was not reversed, It was remanded to the VA Supreme Court to give them an opportunity to interpret the prima facie provision to render it constitutional.

If you are willing to mind-read people then thought crimes are easy, I suppose.

99% of crimes require the jury to find that the defendant acted with a particular mental state. Attempted murder does not become a "thought crime" because it requires the intent to kill, nor does extortion become a thought crime because it requires intent to cause fear. I am skeptical of this prosecution (though I don’t know what, specifically, these particular defendants are alleged to have done), but this particular criticism seems to miss the mark.

Why are you skeptical in this case? The inference of intent is a jury finding and basically not reviewable. Are you skeptical that a jury would be unwilling to determine they intended to intimidate?

I am skeptical because prosecutors tend to push the boundaries of statutes and the First Amendment all the time and so engender skepticism, and because it benefits the prosecutor to bring a dubious case and then blame the judiciary if the case gets properly tossed, or blame the jury if they lose (as often happens with "tough on crime" prosecutors, who have a similar incentive to overcharge, and who similarly use the judiciary as scapegoats when dubious charges get thrown out).

Do I understand you correctly, that you think there is a plausible First Amendment issue here? Do you see this as a problem with the statutory construction, or with the application of an otherwise valid law?

The application. But only potentially. We don't know enough about what specifically the defendants are alleged to have done. The law itself is clearly perfectly fine under Virginia v. Black.

Or the jury rules against the defendants because of their political views, and the judiciary just plays Pontius Pilate and defers to the jury.

what a joke. hopefully a pardon is in order

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