Student submissions: a Conlaw moment

[Robert Sheridan]

Wisconson v. Mitchell, 508 US 476 (1993) appears to be the case you  
very kindly provided; I'm impressed, not for the first time.  Here's  
a quote from the headnote, which still seems to leave unanswered some  
of the questions posed:

"...
Motive plays the same role under the state statute as it does under  
federal and state antidiscrimination laws, which have been upheld  
against constitutional challenge. Nothing in R.A.V. v. St. Paul,  
supra, compels a different result here. The ordinance at issue there  
was explicitly directed at speech, while the one here is aimed at  
conduct unprotected by the First Amendment. Moreover, the State's  
desire to redress what it sees as the greater individual and societal  
harm inflicted by bias-inspired conduct provides an adequate  
explanation for the provision over and above mere disagreement with  
offenders' beliefs or biases. Pp. 485-488.
(c) Because the statute has no "chilling effect" on free speech, it  
is not unconstitutionally overbroad. The prospect of a citizen  
suppressing his bigoted beliefs for fear that evidence of those  
beliefs will be introduced against him at trial if he commits a  
serious offense against person or property is too speculative a  
hypothesis to support this claim. Moreover, the First Amendment  
permits the admission of previous declarations or statements to  
establish the elements of a crime or to prove motive or intent,  
subject to evidentiary rules dealing with relevancy, reliability, and  
the like. Haupt v. United States, 330 U.S. 631 . Pp. 488-490.


The statute prohibiting criminal street gang membership, by contrast  
to Mitchell, does involve a restriction on constitutionally protected  
activity, association in a group, such as discussed in Scales, where  
the group was the CPUSA.

Note also that Hamdi v. Rumsfeld (2004) __ US __, 124 S. Ct. 2663,  
can, and I believe should, be read as a "gang" membership case in  
that Mr. Hamdi sought to challenge his classification as an "enemy  
combatant," a member in a group fighting the U.S., i.e. a gang of  
sorts.  The issue was whether he had received sufficient (or any)  
'process,' with the Court holding 'no.'


Should students be provided a Miranda-type warning before submitting  
homework essays or art projects, pursuant to school requirement,  
advising that what they say can and will be used against them in a  
court of law, such as in a hate-crime or gang-membership  
prosecution?  That an attorney will be provided by the school at no  
cost to vet required student-submissions against the prospect of  
prosecution?

Suppose a student not suspected of being a gang member, but impressed  
by the life and death issues of the gang culture in his school,  
submitted such a gang-related poster, and the school took it down.  A  
violation of the student's right to express his fears and concerns?

Doesn't fear of prosecution for student art or essays chill speech?

Seems to me that I read in today's NYT Linda Greenhouse piece that  
the Court is now considering the "Bong hits 4 Jesus" student-banner  
case which may shed some light when decided.  Think I also saw  
mention of our distinguished correspondent.

rs
sfls


On Mar 18, 2007, at 11:32 AM, Douglas Laycock wrote:

> 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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