Mimesis Law
20 October 2021

Milo Doesn’t Need RICO Protection for His Speech

February 17, 2017 (Fault Lines) – The self-styled “Dangerous Faggot,” Milo Yiannopoulos, has gained great fame by being the alt-right poster boy for free speech. Among other things, he was famously kicked off Twitter for allegedly getting folks to twit mean things to an unfunny actress in a poorly reviewed movie, after he wrote an inflammatory review of Ghostbusters. Later, the announcement of his book release caused a number of self-righteous folks to announce a boycott.

Meanwhile, Milo kept taking on speaking engagements, including one at Berkeley. But a number of folks showed up, exercised their heckler’s veto, behaved violently, and shut down the talk before it could begin:

Fast forward to January of this year, when the prospect of having right-wing provocateur, Milo Yiannopoulos, speak at Berkeley’s campus led to violent protests and vandalism en masse that resulted in the cancellation of the event. ATMs were smashed by masked goons, fires were spread, a Milo supporter was pepper sprayed, and even students’ beloved Starbucks had its windows smashed to smithereens.

This incident has caused many, besides Mario Machado and Chris Seaton, to argue about whether there is a war on free speech. For most of us, that’s all we can do—argue. But when you’re in the legislature, you can do more. An Arizona State Senator wants to rewrite Arizona’s RICO law to cover the type of rioting that happened at Berkeley and in D.C. during the inauguration:

In both cases, black-clad anarchists battled with police, assaulted Trump supporters, and destroyed property.

In D.C., cars were set aflame, and 230 people were arrested, some of them reporters who had been documenting the protests.

At the Berkeley melee, demonstrators hiding their faces and using so-called “black bloc” tactics, tossed Molotov cocktails, set fires, and smashed ATMs, causing an estimated $100,000 in damage.

These are the types of laws that can be insidious. You have the desire to protect people from harm, and to allow them to exercise their constitutional right to free speech. And it appears to be a coordinated effort here to disrupt certain events and speakers. A bill that aims to protect these interests, stop destruction, and punish the wrongdoers has strong emotional appeal. Only hard-hearted people, who hate kittens, could oppose such a bill. It’s in these instances where you should watch your wallet.

We’ve experimented with passing laws that permit the government to protect the constitutional rights of a person from another person. And we’ve come to the general conclusion we don’t really want the police to protect constitutional rights. See also Deshaney v. Winnebago County.

After the Civil War, some of the disaffected losers formed the KKK to terrorize the freed blacks and resist Northern power. Eventually, the General who won the Civil War became the President who broke the KKK. Armed with several Acts of Congress, President Grant managed to put down the nation’s first domestic terrorist organization.

But once Reconstruction was over and Jim Crow was firmly established, the Supreme Court was no longer comfortable with the broad authority the President had enjoyed, so they took it away. A Tennessee Sheriff, along with other men, took black men out of the jail to abuse them. The federal government attempted to prosecute this under the Act President Grant had used, but the Supreme Court found that Act unconstitutional:

In the indictment in this case, for instance, which would be a good indictment under the law if the law itself were valid, there is no intimation that the State of Tennessee has passed any law or done any act forbidden by the Fourteenth Amendment. On the contrary, the gravamen of the charge against the accused is that they conspired to deprive certain citizens of the United States and of the State of Tennessee of the equal protection accorded them by the laws of Tennessee.

As, therefore, the section of the law under consideration is directed exclusively against the action of private persons, without reference to the laws of the states or their administration by the officers of the state, we are clear in the opinion that it is not warranted by any clause in the Fourteenth Amendment to the Constitution.

Although a successor statute is still on the books, the Supreme Court has nearly strangled that as well. There appears to be a fear that a broad reading will allow Congress to have general police power and upset federalism. A sheriff yanking a guy out of the jail and beating him is something for which the Court concluded federal prosecution just isn’t right because a sheriff doing it isn’t enough state action. Let the heavens fall to save the enumerated-rights doctrine.

On the other hand, the judiciary has been generally comfortable with broadly reading the Commerce Clause, while consigning the 13th and 14th Amendments to a more narrow reading. In fact, the Commerce Clause has been stretched to fill the gaps left by the narrow reading of those Amendments. It’s a puzzling distinction about which it’s hard to ignore the racial context behind the Amendments.

The Arizona bill does not purport to be a civil rights bill. The bill is supposedly aimed at protecting free speech by punishing rioting. But if it were really about free speech, it would make more sense to frame it as, you know, a civil rights bill. After all, Arizona doesn’t suffer from the limitation of enumerated powers built into the federal Constitution. And Arizona could pass legislation to enforce its own free speech clause. But that would require careful balancing and line drawing.

Instead the bill does the following:

SB 1142 also would expand the definition of rioting, already a Class 5 felony, punishable by up to 2 years in prison, to include property crimes.

Under the proposed revision, someone commits a riot, if, along with two or more people, the perpetrator uses force or violence or threatens to use force or violence, which either disturbs the peace or “results in damage to the property of another person.”

That revised language would also open up organizers of a protest to the charge of illegal control of an enterprise, a Class 3 felony, punishable by up to seven years in prison. In some cases, it even can be a Class 2 felony, punishable by a maximum sentence of 10 years.

There’s something many find uncomfortable about using the government to police possible violations of constitutional rights between private people. In fact, the only time we appeared to find it acceptable was during and after a bloody war. And, as we all know, in times of war, the laws fall silent. But there is never much concern about giving the government more power to potentially quell dissent and shut down protests.

The former union boss for the Phoenix Police Department favors the bill, claiming Martin Luther King and Cesar Chavez would support it. You see, they didn’t riot for civil rights; they protested peacefully. I see what you did there, bro.

But the supporters of Jim Crow would have no trouble characterizing it as a riot, justifying the use of hoses, dogs, gas, and clubs on the crows. We know this because they did just that.

The Executive Director of the Arizona Police Association agrees with his fellow law enforcement spokesman, and he believes that the bill will allow police to go after the money source. Because no one could riot without first receiving the invitation in the mail. And there’s profit opportunities in the lucrative trade of rioting, trashcan burning, and Starbucks looting.

There’s plenty of reason to question if this is necessary. It’s not like there aren’t already laws that could be used to punish rioters:

Republican state Senator Bob Worsley, a member of the Judiciary Committee, criticized the bill as yet another effort at over-criminalizing acts that are already criminal, which only increases the state’s prison population at a cost the state’s budget can ill afford.

You see that enforcing current laws would likely require the police to protect the speaker and protestors. That’s something that a true civil rights bill would attempt to do too. This is because both parties would have an enforceable constitutional right, up until the speech became unprotected.

Instead, under this bill, the first knucklehead to burn a trashcan gives the police the ability to declare a riot, shut the whole thing down, and charge as many people as they want. Because dealing with a single idiot in a crowd of people is difficult, dangerous, and little reward for a lot of effort, this broad delegation of authority to arrest many and ask questions later finds traction.

Milo, his supporters, and the property there already enjoyed protection against violence. Violence at protests is already illegal, besides being generally ill-advised. These laws would have been unlikely to deter any of the violence.

If Arizona was serious about protecting Milo’s free speech rights, then it could take up the largely abandoned federal project. But it’s not. That would involve devoting police resources and prosecutors to investigate the possible conspiracy, its members, and the purpose of conspiracy. It lacks all the mayhem of riot suppression.

Plus, that’s a lot of resources expended on investigating why someone couldn’t speak at an event. Milo is just a convenient and somewhat sympathetic (yeah, I know) figure that can be used as an excuse to aggressively expand RICO to chill protests. Arizona doesn’t really give a whit about his right to speak. It’s more about making it easier to shut down a speech at the first rowdy moment.

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  • Brian Cowles
    20 February 2017 at 9:24 pm - Reply

    I notice that armed robbery would be probably be considered rioting, as long as there were at least three robbers.

    Fortunately the list of those against the bill is some six times longer than the list of those for it.

  • At the Supreme Court, You’ve Got the Freedom to Speak Elsewhere
    7 March 2017 at 9:36 am - Reply

    […] time of Trump. While many remain peaceful, others turn into violent events where trash cans burn, Starbucks gets looted, and necks get yanked. Some people like the opiate of protests, marches, sign-carrying, regardless […]