I've heard free speech isn't free, and Brandon Duncan, who raps as Tiny Doo, has learned that the hard way.
Until recently, Mr. Duncan spent eight months in jail on "gang conspiracy" charges arising from several shootings in San Diego from May 2013 to February 2014. Prosecutors admit he wasn't at the scene of the crimes, and they have no evidence linking him to the shootings. Mr. Duncan, who has no criminal record, also says he had no knowledge of the crimes. But the district attorney charged him all the same because he raps about shootings.
That's not only absurd; it's a blatant violation of the First Amendment.
Mr. Duncan, after all, is an artist, whose music reflects what he's seen. "I'm just painting a picture of urban street life," he recently CNN's Don Lemon. "The studio's my canvas …. I'm not telling anyone to go out and kill somebody or go do something. I'm not doing anything differently than [Grammy-winning rapper] ."
But the San Diego district attorney thinks otherwise. Under an , an "active participant" in a "criminal street gang" who "willfully promotes, furthers, assists, or benefits from" any felony committed by fellow gang members can be charged with "conspiracy to commit that felony." Unlike traditional conspiracy, the charge doesn't require any agreement to commit the crime. Instead, it requires either "promoting, furthering, or assisting" the crime, which means being a direct accomplice, or knowingly "benefiting" from the crime.
Whether or not this law can be used to prosecute others, the prosecution is abusing it to charge Mr. Duncan. To "promote, further, or assist" means to aid and abet, and there's no evidence he did that. That leaves "benefit." The district attorney alleges he has "benefited" from shootings committed by unidentified gang members through making a CD called "," on which he raps about shootings, and through receiving "praise" for his music. As the prosecutor admitted, he wouldn't be charged if he sang "love songs."
That's wrong on so many levels that it's hard to know where to start.
This is a textbook case of using a "gang" dragnet to over-criminalize people of color. It's not even clear Mr. Duncan is an "active participant" in the gang under California law. But even if he is, the prosecution's theory violates the First Amendment by punishing him for the content of his speech. The government can punish crime, but it can't punish speech about crime, even by proven criminals about their own crimes, much less an artist like Mr. Duncan.
, the Supreme Court held that the government can't sequester income from speech based on its content, even speech about crime, because that would punish the speech itself. Under that principle, the government can't prosecute Mr. Duncan for singing about crime or receiving "benefits" for doing so. Indeed, this case is even worse, because it involves criminal prosecution, not just loss of income.
On the state's theory, it could prosecute a current or former gang member for , , or appearing in a , as well as a substance abuse counselor who , because they all "benefit" from knowledge of crimes committed by gang members.
It's all preposterous.
The state can't criminalize protected speech, and it can't criminalize Mr. Duncan's music. Thankfully, Mr. Duncan is now free on bail, but he still faces "gang conspiracy" charges, which threaten a potential life sentence. The ACLU has asking the court to dismiss the charges immediately.
In criminal cases, however, the process itself is often the punishment, even without a conviction. Mr. Duncan spent eight months in jail when he never should have been arrested in the first place. The court should stop this case in its tracks and send a clear message that prosecution for protected speech cannot be tolerated.
Free speech may not be free, but it's not a crime.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.