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When Association Is Attacked.

December 4, 2014

Rapper Tiny Doo isn’t just on trial for his speech, but his associations— and that should terrify us.

Let’s make one fact clear.  Brandon Duncan, who raps under the name Tiny Doo, has not been convicted of a crime of violence. In fact, he apparently has never been convicted of any crime. Right now he is being charged under California Penal Code section 182.5. That section concerns individuals who benefit from gang-related criminal activity:

Notwithstanding subdivisions (a) or (b) of Section 182, any person who actively participates in any criminal street gang, as defined in subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, as defined in subdivision (e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.

The argument made at the preliminary trial boils down to the following: Branden Duncan benefited from his association with the gang because his music sold better due to the gang’s activities. It is not claimed that he participated in any of the murders committed by the gang, or that he provided them any sort of direct assistance, material or other wise.

But his record sold better. And that, in the eyes of District Attorney …. Is enough to convict him of a crime that might very well result in him facing a prison term that might be up to life in prison.

There is a great deal of justified mockery of this decision. Presuming we find nothing else out, such as evidence directly tying Mr. Duncan to the crimes (and if there is, then why didn’t the DA simply charge him with that in the first place), it seems to be a clear violation of his First Amendment right to free speech— and if speech can be criminalized for such indirect ties to crime well then, the news media has already spoken about the potential for criminalizing everything from Hollywood movies that portray criminals to other artists (Frank Sinatra anyone?) who might benefit from their association with “bad boys.”

More seriously, consider how any political group usually gains a number of adherents who are violent— whether it is left wing fanatic making bombs or a right wing anti-abortionist preparing to shoot a doctor. Should they be linked? Their speech is far more directly related to the crime in question than Duncan’s, after all. If benefiting from the actions of others is enough to lead to charges like this, even absent any direct connection with the crime in question, then just about every organization that champions a controversial cause may find itself in deep, deep trouble.

But It’s not Just Speech

But one thing many commentators are missing is that this case isn’t just about speech. It’s about association; a right that gets talked about far less, but it in many respects just as important as speech. In some respects, it is more important than speech because free speech so long as you don’t associate with anyone the government doesn’t like isn’t very much of a right. By declaring that he is a criminal because he “benefited” from the actions of the other gang members, even though he did not take part in any crime, even though he had no knowledge of the crimes in question. Again, we are not trusting Mr. Duncan here— the prosecutor has not based his case on any type of direct knowledge or participation, merely the indirect (and highly arguable) benefit being associated with the gang brought Mr. Duncan via better sales for his music.

That’s not punishing his speech: that’s punishing and criminalizing his association with the other suspects. And that is, quite frankly, terrifying when you consider the tremendous expansion of the government’s ability to cry “conspiracy”. The material support provisions embedded in the Patriot Act have, quite rightly, seen criticism from both the left and the right over the way they have immensely expanded the governments ability to criminalize symbolic speech and even the loosest association.

This case could set the precedent for a union advocate being charged because his blog became more popular as a result of covering a violent strike, even as a libertarian is charged due to his approving coverage of an anti-government group that is later associated with (or claimed to be associated with) a criminal action. This is especially dangerous given how the Internet has helped many people establish a web of connections that are quite literally world-wide.

Yes Virginia, This Would be the Sort of Thing to be Selectively Enforced

We don’t have to even ask that question. The Guardian points out that prosecutor Dana Greisen, asserted that: “Rap music, it’s just another form of communication that gang members use.” In other words, Rap Music as a form is seen as suspicious and may be prosecuted. We should note that there is no evidence that Mr. Greisen is right. While Rap music represents an often violent subgrenre of rock, it is hardly the preferred secret communication channel for gangs. Again, in a better world, Mr. Greisen would have to be able to show proof that Mr. Duncan directly benefited from a direct connection and knowledge of the gang’s actions.

Again, there are a wide range of groups that could be targeted by similar laws, individuals finding that their right to associate with people of their choosing was now subject to state legal action based on the nebulous concept of whether they profited from it. It is very likely that such an evaluation would be determined based on who is popular. The law is seldom enforced against pillars of the community after all, and Rap is notorious for being seen as representative of a cultural movement many authorities would like to see go away. I myself am not overly attracted to Rap, but using the power of the state to attack artists based on nebulous concepts like this law is based on is not the route to go.

It is said that this prosecution will almost certainly not survive a federal challenge if he is indeed convicted. That may be so, but decades of the war on drugs and the more recent war on terror have created an environment in which more than a few courts have been far too friendly to claims of necessity by the government.  More importantly, Mr. Duncan could spend years in prison while waiting for his appeal to come up– and lost time, above all other resources, is one thing that the state can never compensate a victim of injustice for.

Just remember, your freedom of association isn’t simply an important right, it is the right upon which most others hang for all that it is an unwritten one. The “right” to practice your free speech in an empty room, to practice your religion in a closet, isolated from friends and associates, is no right at all. Whether you are liberal or conservative, enjoy Rap or feel that it is a crime against music, the prosecution of Mr. Duncan is a prosecution of your own right to, absent a direct connection with a criminal activity, enjoy the right to associate with others of your own choosing.

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