First Amendment Update

A Georgia couple is facing a combined 35 years in prison today after flying Confederate flags at a black child's birthday party. The longest sentence, 20 years with 13 years mandatory prison time, is technically for "aggravated assault," although it actually sounds less like assault and more like the misdemeanor offense of pointing a weapon. The state managed to convict on three counts of aggravated assault in spite of the absence of an actual assault.

The group was prosecuted under the Street Gangs Terrorism and Prevention Act, on the strength of the fact that they were part of a named group ("Respect the Flag"). In other words, organizing for a political purpose -- a protected 1st Amendment free association liberty -- now opens you to prosecution as a street gang.

Although the prosecutor denies that their choice to fly the Confederate flag in any way relates to the incredibly harsh sentences for a nonviolent confrontation, the judge described the confrontation as "a hate crime."

Georgia doesn't have a law against "hate crimes."

It looks a lot like the judge chose to accept a theory of prosecution under which free expression and free association are aggravating factors. The protected political freedoms, in other words, are themselves the reason why a misdemeanor is transformed into a 20 year felony. They chose to create a group to pursue a political agenda, and the fact that they had a group name is what lets them be prosecuted as a "street gang." They chose to fly flags and speak disapproved words, and that's what allows them to be convicted of "aggravated assault" instead of "pointing a weapon." They were convicted of the hate crime, in other words, that exists in the judge's mind even though it does not exist in the law.

AVI often says that we never get to pick the things we have to defend, and here's a good example. Doubtless these people are rednecks, probably they are racists, and nevertheless their protected liberties have been transformed by the state into crimes. That has to be opposed, even if the people involved are not particularly worthy of respect.

UPDATE: According to NPR, the sentence extends even to banishment.

UPDATE: This reminds me of a story I've been thinking about for a few days, but that I only know firmly know what to think about. Arizona has been considering a law to apply racketeering laws to political organizations whose protests become violent. This also allows the government to treat people who have come together to express a political opinion as a criminal organization, if at any point there is an altercation about it.

These are serious threats to important First Amendment freedoms.