Court Lets Stand Ruling for Ex-Gang Member

WASHINGTON -- A former California gang member has a free-speech right to teach an Arizona group how to set up its own street gang, under a ruling the Supreme Court let stand Monday.

The justices turned away an appeal from Arizona prosecutors who sought to revive a 15-year prison term given the former gang leader.

Arizona law makes it a crime to advise or direct a criminal enterprise, and prosecutors used this law against Jerry McCoy, who was on parole when he moved to Tucson after leaving a gang in California.

They cited evidence that he advised younger gang members there on how to operate a gang to ensure loyalty among recruits. He also advised them about using spray paint to “tag” buildings and mark turf.

A jury convicted McCoy, and the state courts upheld the conviction. But in February, the U.S. 9th Circuit Court of Appeals threw out the conviction and ruled that the 1st Amendment protects the “mere abstract advocacy of lawlessness.”

Although the 9th Circuit is known as a liberal bastion, the ruling in the McCoy case was written by Judge Diarmuid O’Scannlain of Portland, Ore., and joined by Judge Alex Kozinski of Pasadena, both of whom were Reagan appointees.

“Advocacy of illegal action at some future time” cannot be made a crime, O’Scannlain said, citing Supreme Court rulings.

Since the days of Justice Oliver Wendell Holmes, the court has said the 1st Amendment protects speech up to the point it creates a “clear and present danger” to incite violence or lawbreaking.

But recently, the reach of free-speech protection has been debated anew in cases involving terrorism and abortion.

The 9th Circuit on a 6-5 vote upheld a huge damages verdict against anti-abortion activists whose “wanted posters” on the Web were seen as a threat to doctors, not mere advocacy against abortion.

The dissenters said the Internet postings did not create an imminent threat of violence.

In terrorism cases, government lawyers have said that those who advocate violent attacks or “jihad” are not protected from prosecution by the 1st Amendment.

In the Arizona case, Justice John Paul Stevens faulted his colleagues for “glibly” labeling as free speech the giving of advice and training to violent lawbreakers.

The 1st Amendment should not be read as shielding advocacy that “may create significant public danger,” Stevens said, and he urged the court to take up a future case to clarify the law.