Student submissions: a Conlaw moment

[Douglas Laycock]

  I think the relevant case is Wisconsin v. Mitchell(?), and it goes
the other way.  Not 100% sure I have the defendant's name right. 
This was a year or two after RAV; it held that speech could be
admitted to show racial motive under a statute providing enhanced
penalties for racially motivated crimes.  Held, that was not
punishment for the speech. 

  Using speech to show membership, as in your case, seems a step more
attenuated than using speech to show motive. 

  Quoting Robert Sheridan <bobsheridan at earthlink.net>:

>   During a preliminary hearing to determine whether probable cause  
> existed to try a defendant for robbery and being a gang member, a  
> police Gang Task Force detective testified as an expert, as is  
> permitted, that in his opinion the defendant was an active member
of 
> a "violent street gang," as defined by California´s Street
Terrorism 
> Enforcement and Prevention Act, Penal Code Sec. 186.20, et. seq.
>
> Scales v. U.S. 367 US 203 (1961), one of the Communist Party  
> membership cases of the McCarthy Era, the  Cold War, the Red
Scares, 
> and the witch-hunts (see American Prometheus, by Bird & Sherwin  
> (Vintage, 2005), a biography of J. Robert Oppenheimer, "the father
of
>   the atomic bomb,") requires that membership in an outlawed group
be 
> "active" and with specific intent to further its illegal ends, in  
> order to incur criminal liability.  This applies today to street 
> gangs.
>
> Among the factors the detective cited as gang active-membership  
> criteria were such things as:
>
> -self-acknowledgment
> -wearing gang attire, embellishments, insignia, tattoos, colors,  
> numbers, etc.
> -flashing hand signs
> -associating with known gang members
>
> As to the particular defendant I was appointed to represent, there 

> was a different factor.  Several years earlier, while the
defendant 
> was a high school student, the detective was summoned to the
school 
> in response to a fight near the school among boys who were said to
be
>   gang members.  My client was thought to have been involved in
that 
> incident.  While the detective walked through a school hallway to  
> speak to those detained in connection with the fight, he saw some 
> art- posters, made by students, on the wall.
>
> Recognizing the poster above the name of my client to contain gang-

> related symbols, the detective photographed the poster and name. 
It 
> shows a yellow field on a red background on which has been pasted,
or
>   printed, scatter fashion, in collage style, the following
legends, 
> among others:  "I am this man; I am reptile; I am wild; I am coral;
I
>   am NORTE; I am North; I am student; I am ready; I am American..." 
> The  large numerals 22 and 14 are prominently superimposed.
>
> Red is the color worn by Nortenos, blue by Surenos.  People have
been
>   murdered for wearing the wrong color in the wrong district.  14
is 
> the 14th letter of the alphabet, "n," for Norte or Norteno.   22  
> stands for 22nd street, which belongs to Nortenos. 22B stands for
the
>   22nd and Bryant Street subgroup of Nortenos. They appear in
tattoos,
>   on clothing, tagged on walls and buses, etc.
>
> In Latin-American culture, gangs, according to the detective- 
> historian, have existed for perhaps hundreds of years.  They have  
> devolved into a North South rivalry, with the northerners, or  
> Nortenos, with a tilde over the 2d `n,´ being the more acclimated  
> while the Surenos, likewise with the tilde, are supposedly the  
> relative newcomers.  They are deadly rivals, especially in prison, 

> and have staked out turf on the streets of LA, SF, and other
cities.
>
> After the prelim, the defendant´s c/l wife, Estrella, the mother
of 
> his two children, a bright, bilingual young woman of about 22
years 
> with a high school education who attends vocational training
school, 
> stated resentfully that she didn´t think it was fair for the
police 
> to have used this poster as evidence of gang membership against
Alex.
>
> As soon as she said it, I realized that she was making a Conlaw  
> objection,  which I was able to flesh out in mind later.
>
> "Why?" I asked.
>
> "Because he was in school and that was a school project," she
replied.
>
> What struck me first was that she is the one who thought of the  
> objection, not me, and I purport to teach the class.  Obviously  
> there´s a sad disconnect.  This, I thought, is how Conlaw gets
made. 
>   Someone, a civilian, an accused, or his friend or relative, gets  
> upset at the fairness of a heretofore common usage.   The lawyers
put
>   it in legal form by raising objections and supporting briefs,
citing
>   text and cases etc.  This was a Conlaw Moment for me.
>
> Secondly, as I thought about the matter, I wondered on what legal  
> ground could I move to exclude this evidence at trial.  What case,
I 
> wondered, permitted the First Amendment to be used to exclude/ 
> suppress evidence as the Fourth and Fifth Amendments are used in  
> cases of illegal searches and confessions obtained in violation of 

> Miranda or voluntariness rules.
>
> Although the matter is now academic, as the case dealt out before  
> trial on non-gang-related charges, I would like to ask whether
there 
> are cases in which evidence in a criminal prosecution has been  
> excluded based on academic freedom, artistic license, general  
> creativity or expression, or related First Amendment protected
ideas?
>
> Somehow I have the feeling that it either doesn't exist, or looms  
> large before my eyes and I´m not seeing it.
>
> Perhaps the answer is that if the other amendments in the Bill of  
> Rights can be used to suppress evidence, why not the First?  It´s  
> just that I´m having difficulty in pulling up the leading case, as 

> obvious as I suspect it may be.
>
> Haven´t legally seized private, personal diaries been introduced
into
>   evidence where they contain statements that might be considered by
a
>   jury to be admissions?  Even over a privacy objection?  Here the  
> student´s poster was published on a school wall, which likely kills
a
>   privacy objection.  Does privacy reside in the First Amendment, or

> is  it a moveable feast, which I think Griswold suggests, in
resting
> the  penumbras and emanations on no less than four amendments, 3,
4,
> 5, &  9, as I recall, but not #1.
>
> Would it make a difference whether the art project had been
required 
> by the school?  In other words, was submitted involuntarily or in  
> submission to legal authority?
>
> Should student submissions receive some FA protection against use
in 
> criminal proceedings?  In all cases?  Some?
>
> Are the statements actual admissions, or by contrast, are they
simply
>   artistic expressions related to the young man´s worldly concerns 
> that  don't amount to admissions per artistic license?  As a matter

> of  law?  Or fact for the hanging jury?
>
> Suppose that gangs loom large in Alex´s mental, rational, and  
> emotional life and that he is mindful of their influence over his  
> choice of friends, manner of attire, and how he conducts himself;
and
>   that he expresses his inner mind in a poster submitted to his 
> school,  voluntarily or not, the way someone else might contribute
a
> poem or  essay expressing deep feelings.  For him, as a young male 
> Hispanic,  these are life and death matters.  He should be thinking

> about them.   Why not express them artistically?  Isn't that what artists do?
>
> I´ve seen news reports of students being hauled before authorities 

> for essays thought to be alarming or which seem to threaten to
commit
>   another Columbine-like shooting massacre.
>
> I´d appreciate any comments on or off list and offer thanks in
advance.
>
> rs
> sfls
>
>
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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