Facing Five Years In Prison For Posting A Photo On MySpace Wearing Gang Colors

from the seems-a-bit-harsh dept

Mon, Aug 10th 2009 7:59am — Mike Masnick

Dealing with gang activity is certainly a priority in areas beset by gang violence, but does that mean we throw out certain First Amendment rights? Last year, Florida passed a new anti-gang law that banned using electronic communications "for the purpose of benefiting, promoting, or furthering the interests of a criminal gang" and that included "advertis[ing] his or her presence in the community" via an online image or video. Apparently, authorities in Florida have now arrested 15 people under this law based on their MySpace profiles, including one 14-year-old who "posted pictures of himself dressed in gang colors and displaying gang hand signals." For this, all of those arrested now face up to 5 years in prison. Some are already protesting the constitutionality of this law. It certainly seems like a limit on free expression.

Even recognizing the problems with gang violence, it seems a bit extreme to arrest people and threaten them with jailtime just for posting such photos on their profiles. Why not use that information to track and monitor certain gang members to try to stop actual illegal gang activity? Here are kids advertising to anyone (including the police) that they're in a gang, which should make it easier for the police to follow them and use that info to deal with real gang activity.

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Filed Under: florida, free speech, gangs, social networks
Companies: myspace

55 Comments

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yozoo, 10 Aug 2009 @ 8:16am

asked and answered two lines apart
"Dealing with gang activity is certainly a priority in areas beset by gang violence, but does that mean we throw out certain First Amendment rights? "

obviously that question has already been answered;

'anti-gang law that banned using electronic communications "for the purpose of benefiting, promoting, or furthering the interests of a criminal gang"'

Thank god at least someone was thinking of the chidlren and has already limited free speech here.
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Anonymous Coward, 10 Aug 2009 @ 8:20am

I wonder how they would legaly establish what is a "crimal gang"? If they had evidence of a criminal enterprise, wouldn't they just lock up the entire gang under the RICO law?
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Bob V (profile), 10 Aug 2009 @ 8:25am

When I lived in california there were certain areas of the city i lived in that were covered by some sort of injunction prohibiting gang members from gathering together, carrying cellphones, being out after certain times. We are quickly giving up all of our rights to protect the children, to protect the community, to protect our rights (I'm still confused on how giving up some rights protects others)

Politicians keep enacting laws that give the most expedient path to providing some sort of visible safety unconcerned whether it is effective or not or even good in the long term or not And we keep going along with it. I want my kids to be safe but I also want them to have all of the rights and freedoms we associate with being an american.
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Trails, 10 Aug 2009 @ 8:36am

Re:
In other words, you're saying politicians aren't looking for a solution, they're just mugging for the cameras?

And you're surprised? You must be new here (and by here I mean planet Earth) :)
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Anonymous Coward, 10 Aug 2009 @ 8:43am

Laws like this usually get stomped on when they get high enough in the courts. As a poster said before in CA and other locations they have tried to stop gangs from congregating. Yes, crime dropped. Yes, the citizens in general were happier. But the higher courts always end up bashing the local politicians in the head with the gavel. Sadly it takes a while to get up to the head bashing point and the only people that truly lose are those already harassed by the police and the citizens tax money being wasted in the court proceedings to repeal illegal 'laws'.
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Anonymous Coward, 10 Aug 2009 @ 8:46am

And what makes you think police are only arresting them? You are missing half the story.
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dmntd, 10 Aug 2009 @ 8:49am

oh boy...
ahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh! Call me a balancing nut but for the most part if you don't want gangs remove the insensitive to be IN one.
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Anonymous Coward, 10 Aug 2009 @ 8:49am

Maybe now stupid kids will stop posting ridiculously retarded stuff on myspace... oh wait, that's what it's for.
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Anonymous Coward, 10 Aug 2009 @ 9:08am

Sounds good to me... arrest anyone in Gang attire and showing gang signs... that means all the hippies showing the peace sign in my books. And lets not for get the Churchill with the 'V' for victory sign in his suit and his allied gang - so lets lock up all the suits too (they must be all part of the same gang).
Who else does that leave.... me sitting here in front of my computer naked (yes I am at work why do you ask?)
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Mr.E, 10 Aug 2009 @ 9:13am

Holy Sheep Shit! Only in Amerikkka
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Anonymous Coward, 10 Aug 2009 @ 9:21am

Re:
While I agree that giving up rights is a bad thing, what you determine a right to be makes a whole lot of difference. What right is being taken away if we passed a law making it illegal to belong to a criminal gang? The problem we have is who determines what is a criminal gang. The Police? Right, they are crooked, our whole judicial system is broken. An example is kidnapping. Kidnapping is now charged against rapist. If you are raping me and I don't want to be there then you have kidnapped me. Seriously, was that the intent of those who passed the kidnapping law? When we allow the police, or D.A., to abuse our laws like this, then we should never actually pass any law that can be twisted and abused. You join a club, someone gets a drunk driving ticket who is a member of your club, now you belong to a criminal gang.

Too often, in today's society, we think everything is a right. A right to drive, a right to marry who we want, the right to do with our body what we want, the right to belong to a criminal gang, none of these are rights. It is the things similar enough that the police can use well intentioned laws to further abuse the law abiding citizens. The police already have too much unsupervised power. Once we fix that I won't mind laws against gangs.
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Anonymous Coward, 10 Aug 2009 @ 9:25am

Re:
Thats the best you can come up with? It doesn't even apply. Get an education, you need one.
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Luci, 10 Aug 2009 @ 9:26am

Re:
Then what's the other half of the story? Enlighten us.
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Anonymous Coward, 10 Aug 2009 @ 9:26am

Re:
Your analogy is poor at best. Are Hippies "a gang"? Was Churchill "a gang member"? Not in my book. Just because people dress alike and use hand gestures it does not mean they are in a gang or are flashing gang symbols. While I don't agree with this article, your response is about as lame as lame can be. Stop reacting and think.

Are you defending gangs or are you trying to protect people who are not affiliated with gangs yet feel the need to posts pictures of themselves in gang attire while flashing gang signs innocently? Just wondering.
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Anonymous Coward, 10 Aug 2009 @ 9:34am

I'm not surprised - it's Florida
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Mr.Mo, 10 Aug 2009 @ 9:36am

Re: asked and answered two lines apart
In what way does putting a child in prison for five years serve the best interrest of "the children"? Trying to set an example huh?

Punishing people for exercising their first amendment right is unconstitutional. period.

If you want to protect children, then target the organizations that recruit them, not the children. And certainly do not ignore the constitution as it is the most powerful protector of the people.
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Michial Thompson, 10 Aug 2009 @ 9:49am

The law may not stand up as constitutional
BUT every search during every arrest that is done under that law while it is still on the books is legal. Which means any charges that result from illegal stuff found during those searches will still stick in court.

Is it possible that the law was enacted with the absolute knowledge that it will get shot down in 3-5 years???
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Overcast (profile), 10 Aug 2009 @ 9:50am

Why? You don't get 5 years for actually WEARING those 'colors', do you?
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Someantimalwareguy, 10 Aug 2009 @ 9:53am

Re: Re:
You said:
"Your analogy is poor at best. Are Hippies "a gang"? Was Churchill "a gang member"? Not in my book..."

Though the examples used may appear absurd on their face, you finish that sentence with the most important point: Who determines who is part of a "criminal gang", and further, who provides oversight of placing the label? To some at the time, the Hippies were considered as being some sort of threat, from illicit drug use through radical ideology that caused fear and overreaction to their cause.

Further, what do you think would have been the fate of Churchill had the British lost the war? Would the German government have seen him as a war criminal if history had unfolded in a different way? Were those caught up in the Stalinist purges criminals? What about McCarthy in the 50's; were the blacklisted actors and writes criminals?

You will find that the term "Criminal" is wholly dependent upon the culture and time when the charges are made. Be careful when you rely on the common sense of the public to understand the subtleties here...

JMHO
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Crabby (profile), 10 Aug 2009 @ 10:04am

Re: Re:
The poster is taking the argument to an extreme in order to prove his/her point. And that point is, that without a clear definition of what is a "gang," we face the fact that sooner or later the definition is going to be hijacked by politics. For instance, could fundamentalist Christians be defined as a "gang" so that politicians could outlaw their right to peaceful assembly, or otherwise control their actions?

This is a matter of politicians trying to put a quick band-aid on something that is a much deeper social problem -- but the cancer remains. Unfortunately, so do the politicians. :(
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Crabby, 10 Aug 2009 @ 10:08am

Re: The law may not stand up as constitutional
"Is it possible that the law was enacted with the absolute knowledge that it will get shot down in 3-5 years???"

I'm curious why you say that. What would be the purpose of something like that? Who would benefit?
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cvpunk, 10 Aug 2009 @ 10:09am

Re: Re:
"a right to marry who we want, the right to do with our body what we want"

should have left those off. I was with you on the driving, but after that your argument fell apart for me. I would have even gone for the marriage one, since I believe marriage is a bullshit institution to impose some false moral values on people. But, to say that someone doesn't have the right to do what they want with their own body is ridiculous. You do not own anybody so you should have absolutely no say so in what they choose to do with their bodies, whether it be piercing, tattoos, or even abortion.
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Anonymous Coward, 10 Aug 2009 @ 10:13am

it is illegal activity
Your comment below is short sighted.

"Why not use that information to track and monitor certain gang members to try to stop actual illegal gang activity?"

You yourself said there is a LAW making it ILLEGAL to use electronic media to promote gang activity.

That is what they were doing. So they were arrested for doing something ILLEGAL.

Move to Florida for a while. Then see how much you care if a law on the books is constitutional. These gangs have open season on us and our families. All we have is the THE LAW.
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Anonymous Coward, 10 Aug 2009 @ 10:18am

Re: RIGHTS
The only right that might be infringed in your comment is right to assemble. But seeing how they were limited in that area alone and not the whole US then their right to assemble was NOT infringed. Limiting cell phones and curfews does not infringe on anyones rights. The last time I read the Bill of Rights, cell phones weren't in there.

Learn the law before you cry about it.
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weneedhelp, 10 Aug 2009 @ 10:18am

What colors?
Could someone tell me what colors are "gang" colors please?

So we cannot wear red, blue, or black anymore? Or G forbid wearing a red shirt with a red bandanna.

Thats it. Get that 14 year old kid into the system. That will push him to the good side. Right?

How many times have you seen the whitest suburban kids flashing gang signs although you know they have never seen a gang member? How many of those kids will be swept up in that crap? Real good Florida.
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tikkiggodd (profile), 10 Aug 2009 @ 11:16am

Re: Re:
That was the poster's intent... to show that the definition of "gang" can be grossly misused to include people that it wasn't intended to include.

Personally, I thought the analogy worked well in portraying the poster's intent...
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Rekrul, 10 Aug 2009 @ 11:18am

End gang violence; Arm normal citizens.
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Michial Thompson, 10 Aug 2009 @ 11:35am

Re: Re: The law may not stand up as constitutional
The reason I ask if its possible the law makers knew it would be shot down is this:

They have a Gang problem, they also know it will take a few years to get the law shot down. They are also aware that any searches and furter charges would stand up in court even if the law was shot down.

I could see this law being used to arrest/detain gang members and use evidence from the search at the time of arrest for other charges. Then dropping this charge to keep it from going to the supreme court.

In the years it will take to get the law invalidated they will have made a dent in the gang problem.
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Elohssa, 10 Aug 2009 @ 11:35am

MY two cents.
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Elohssa, 10 Aug 2009 @ 11:39am

My two cents, part the second.
Sry, hit Entur.

Anyhow, The only defense I can see for this is if the people involved have already been convicted of a gang-related crime. If these people are non-convict citizen, then this is a pretty clear violation of their rights, though it probably will take nice chuck of time to fix the issue, taking them presumed troublemakers off the street.

I'm tracking this as the politicianspolice manipulating the system, which I can't support. They should be fixing it, rather than using it to generate excuses to arrest people they don't like.
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kevin, 10 Aug 2009 @ 11:52am

fair or foul?
(linkback) Fair or Foul? Florida arrests people for wearing gang colors on MySpace [VOTE] - http://www.pikk.com/9ee84
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F FL, 10 Aug 2009 @ 12:04pm

So if i post a pic where i happen to be wearing a red shirt and i turn my hat backwards while doing a little "B-Boy" stance i could get five year?
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V, 10 Aug 2009 @ 12:06pm

EAT. SLEEP. OBEY.
V V V V V V V V V V V V V V V V V V V V V V V V V V V V V
Did it occur to anyone else that they are wasting tax dollars on having FBI agents/police myspacing at work!?

Why not get them out there in the streets and actually do something about the gangs if they are such a problem.
This is a violation of our rights. Hey, if you are going to violate our rights, at least act like the cops in FRESNO, CA did and go out and arrest anyone in the streets wearing Fresno State apparel and/or colors!!! At least they violated the people's rights out where gang activity takes place and not coveinently sitting on their rear ends violating rights from a computer screen.
I'm actually for this ruling - WE SHOULD ALL BE REQUIRED TO WEAR NEUTRAL COLORS, TAKE A BAR CODE ON OUR FOREHEADS, AND OBEY "THE LAW."
Regan - something to the tune of "the scariest words you'll ever hear are I'm from the government, I'm here to help!"
Only "The Man" will kill you to prevent you from harming yourself.
V V V V V V V V V V V V V V V V V V V V V V V V V V V V V
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btr1701 (profile), 10 Aug 2009 @ 12:16pm

Constitutional Fail
This law is a big fat target just waiting to be taken down. There's no way this law could survive a constitutional challenge. About 200+ years of 1st Amendment jurisprudence argues against the government's ability to regulate and punish this kind of behavior.
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btr1701 (profile), 10 Aug 2009 @ 12:20pm

Re: Re: RIGHTS
> But seeing how they were limited in that area
> alone and not the whole US then their right to
> assemble was NOT infringed.

Really? So if the government told anti-war protesters they couldn't assemble in the downtown area during the Republican convention, that wouldn't violate the 1st Amendment because the area they were banned from was limited?

Think again. Half a dozen SCOTUS cases have said otherwise.

> Learn the law before you cry about it.

Advice you would do well to heed yourself.
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Anonymous Coward, 10 Aug 2009 @ 12:33pm

Tying big rocks to them and tossing them in the river is "cruel and unusual" so just locking them up with have to do.
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Anonymous Coward, 10 Aug 2009 @ 12:54pm

I'm not exactly sure where I stand on this one though I do think five years is too long. On the one hand we want the government to protect our rights to safety, but on the other hand they may have to limit our rights in the process. Yet if we allow them to take away too many of our rights to protect our rights then that defeats the purpose and the government becomes no better than those they are trying to suppress. I think security now, episode 69, The Social Implications of Internet Anonymity ( http://www.grc.com/securitynow.htm ) is relevant here where Steve Gibson and Leo Laporte discuss the ramifications of freedom of speech over the Internet (and how anonymity impact those freedoms) and the governments role in protecting citizens.
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Chronno S. Trigger (profile), 10 Aug 2009 @ 1:35pm

Re:
Or a 12 year old imitating someone off of the Power Rangers. Seriously, look at Tommy when he was the Green Ranger and tell me he doesn't look like he was in a gang.
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Anony1, 10 Aug 2009 @ 2:24pm

I think this is boarderline but I am for it. Why?
People say here you can't define a criminal street gang.
You can. It's an organization that uses violence, and intimidation, as a means of propogating illegal drug trade.
When I say propogate BTW, I mean proactive. They have a defined code of dress, speech, behavior, and communication.
When the sole purpose of an organization can be proved to be for a criminal enterprise, and you have been identified (through your OWN actions) then yes, the law should be able to step in and regulate your behavior. Is this such a heavy handed step? Kids being shot in cold blood, AND we should defend this punks (my opinion only) "free speech" ?

This isn't a first amdendment issue, IMHO, because the line was crossed from expression a long time ago. Now it could be argued, what constitutes criminal communication vs. protected speech, BUT AGAIN by their own admission (the gang signs, hello!) they are part of a criminal gang.
The laws need to be changed in response to these terrorist thugs. I agree with the above poster who stated the sentence proposed is too long. Let the punishment fit the crime. A year in prison sounds good. First time offenders could get probation,etc,. but something needs to be done.
Unless you have to deal with these SCUM in your community, you don't know how it feels.
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Dan, 10 Aug 2009 @ 3:06pm

Exactly what determines the difference between a gang and a political party? The answer is, official recognition. Coincidentally official recognition only comes from the politicians in power. Now the gangs should register themselves as a political party as a start to official recognition and thereby avoid illegal prosecution for "political statements" or free speech as we know it. After all if politicians can blatantly lie about and misrepresent anything they desire, why can't any citizen also express themselves any way they desire.
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Anonymous Coward, 10 Aug 2009 @ 3:56pm

Re: Re:
Perhaps he was flashing gang signs under the pretext of being a power ranger, he should be arrested!!!! :)
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Anony1, 10 Aug 2009 @ 4:28pm

Exactly what determines the difference between a gang and a political party? The answer is, official recognition.

That of course, is total BS. Despite disagreeement from both sides of the political spectrum about which party in the US is the true band of criminals, I gave a clear definition above as to what constitutes a gang. Decriminalization of narcotics would help fight the problem, but the differences between gangs, and political parties are clear. You don't (excluding the dreams of TV Cable News executives) see Democratic Party leaders selling heroin on the street corner.
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Jake, 10 Aug 2009 @ 5:02pm

Re:
And how good do you think the average juror is at telling the difference between an organised crime outfit and a bunch of dirt-poor coloured kids looking out for each other because they don't trust anyone else to?
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Clueby4, 10 Aug 2009 @ 5:48pm

Doughnut Munchers in the house.
Wouldn't be funny if some reasonable DA, in order to demonstrate the absurdity this law, charged a bunch of cops that have posted their pictures online while in uniform.
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Bob V (profile), 11 Aug 2009 @ 5:07am

Re: Re: RIGHTS
How can anyone learn the law when the law can be twisted by anyone to say and mean anything.

As i was writing this comment i went to wikipedia to look at the bil of rights. In the background section there was something that I found a bit pertinent.

Finally, Hamilton expressed the fear that protecting specific rights might imply that any unmentioned rights would not be protected:

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
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Christopher (profile), 11 Aug 2009 @ 5:29am

Dealing with gangs.
Declare them domestic terrorists. Shoot on sight. The End.

The rest of you can debate this endlessly, but the intellectual masturbation is sad in the face of people getting shot trying to buy milk down the street. Shoot. Them. All.
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Anony1, 11 Aug 2009 @ 8:38am

Re: Re:
And how good do you think the average juror is at telling the difference between an organised crime outfit and a bunch of dirt-poor coloured kids looking out for each other because they don't trust anyone else to?

Easy. People who are just "looking out for each other" don't execute hits in the form of driveby shootings, and surprisingly don't need to sell pounds of drugs.
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Bettawrekonize, 11 Aug 2009 @ 9:41am

I posted this thread on forums.christianity.com and iluvatar came up with a nice response on post 10 that I thought people might find interesting. He specifically refers to an episode of This American Life ( http://www.thislife.org/Radio_Episode.aspx?episode=387 ) where the government defends entrapment.
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Anonymous Coward, 11 Aug 2009 @ 9:41am

Re:
Oh, sorry, here is the link to the forums.christianity.com thread

http://forums.christianity.com/Facing_Five_Years_In_Prison_For_Posting_A_Photo_On_MySpace_ Wearing_Gang_Colors/m_4481565/mpage_1/tm.htm#1
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btr1701 (profile), 11 Aug 2009 @ 10:26am

Re: Rights
> When the sole purpose of an organization can
> be proved to be for a criminal enterprise

The only problem with this is that there is rock-solid constitutional precedent that forbids punishment for guilt-by-association. You can't punish one person for the crimes of another just because they're both part of the same group. Even conspiracy has to be proven beyond a reasonable doubt against each specific individual.

And you certainly can't punish people (i.e. regulate their behavior and freedom of movement) if they haven't even been charged with (let alone convicted of) a crime.
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Anony1, 11 Aug 2009 @ 11:44am

@btr1701: RICO. STFU.
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Anonymous Coward, 11 Aug 2009 @ 11:55am

Re:
You don't want btr1701 or anyone to discuss issues from a position you disagree with?
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Christopher (profile), 13 Aug 2009 @ 6:10am

Hardly it.
If you affiliate with a known criminal enterprise, you've already declared yourself ex social. As such, you should be fair game for immediate dismissal from the society, by whatever means are deemed appropriate.

In other words, you flash Crip signs and dress the part, bullet in the head. The game has changed, the rules have changed, and law enforcement is still forced to play on a different field. No. That's enough.
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Jessanne, 14 Aug 2009 @ 10:40am

You have got to be kidding me
I totally agree with the author's sentiment. Florida needs to get a grip.
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Private Myspace, 30 Sep 2009 @ 11:49am

Private Myspace
Maybe now stupid kids will stop posting ridiculously retarded stuff on myspace... oh wait, that's what it's for.
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